Terms

TELEO MASTER AGREEMENT

This Teleo Agreement (this “Agreement”), effective as of the last signature date below (the “Effective Date”), is entered into by and between Teleo Inc., a Delaware corporation, located at 292 Lambert Ave, Palo Alto, CA 94306 (“Teleo”), and Customer (“Customer”).

RECITALS

  1. Teleo has developed the Teleo System, which includes certain software, hardware products and related services that facilitate remote teleoperation of heavy equipment as more fully described in the Order Form.
  2. Customer wishes to affix Teleo-developed hardware to Customer’s equipment and deploy the Teleo System at Customer’s job sites, and Teleo wishes to provide the same to Customer.

NOW, THEREFORE ,in return for the consideration specified herein and subject to the terms hereof, the parties hereby agree as follows:

  • Definitions. The following capitalized terms will have the following meanings when used herein:
      1. “Ancillary Services” means, collectively, the installation, support, teleoperation, maintenance and training services provided by Teleo (or its Partner) to Customer pursuant to Section 2.2 of this Agreement.  
      2. “Customer Equipment” means Customer’s construction equipment that the Teleo System will be installed on as described in the Order Form. 
      3. “Customer Site(s)” means those location(s) owned or controlled by Customer where Customer Equipment operates and where the Teleo System is used. 
      4. “Documentation” means any documentation that Teleo makes generally available to its customers as part of the Teleo System and any specific documentation that Teleo provides to Customer hereunder.
      5.  “Hardware” means any hardware products provided by Teleo to Customer as part of the Teleo System.
      6. “Intellectual Property Rights” means all patent, copyright, trademark, trade secret, rights in know-how, business domain names, designs, and other proprietary and intellectual property rights recognized in any jurisdiction worldwide, including moral rights.
      7. “Licensed Hardware” means that portion of the Hardware which is lent, not sold, to Customer under the terms of this Agreement, including solar stations and control stations. 
      8. “Order Form” means an ordering document entered into between Teleo (or its partner) and Customer in writing specifying, among other things, the fees and other relevant terms for the deployment of the Teleo System on Customer Equipment for use at Customer Site(s).  Each Order Form which constitutes a separate contract between the parties to which the terms of this Agreement are incorporated by reference.
      9. “Partner” means a Teleo authorized distributor, reseller or services partner who may provide some or all of the Ancillary Services and/or complete the sale of Hardware directly to Customer. 
      10. “Services” means, collectively, the Subscription Services and Ancillary Services. 
      11. “Software” means Teleo’s software applications whose functionality is made available to Customer under this Agreement as part of the Teleo System, and includes without limitation, all improvements, modifications, updates, fixes, and releases thereto that Teleo generally makes available to its customers. 
      12. “Subscription Services” means that portion of the Teleo System that is provided by Teleo on a subscription basis to Customer and includes certain Software and Licensed Hardware. 
      13. “Teleo System” means the system developed by Teleo for the remote teleoperation of heavy machinery and is comprised of the Subscription Services, Hardware and Software. 
      14. “Usage Data” means any data that is derived from Customer’s access to or use of the Teleo System, and any statistical or other analysis, information, or data based on or derived from the foregoing.
  • Teleo System. 
      1. Usage Right.  Subject to Customer’s compliance with the terms and conditions of this Agreement, Teleo provides to Customer a limited, non-exclusive, non-transferable, revocable right to access and use the Teleo System on Customer Equipment at Customer Site(s) during the Term (as defined below), including use related to deployment of the Teleo System and, if applicable, internal testing and evaluation purposes, all as further described in the applicable Order Form(s).  
      2. Hardware, Software and Services. 
        1. Hardware.  Subject to Customer’s payment for Hardware, Teleo (or its Partner) will deliver the Hardware to Customer at the address set out in the Order Form. Teleo (or its Partner) will install the Hardware on Customer Equipment.  Hardware that is affixed to Customer Equipment is purchased outright by Customer and may remain in Customer’s possession following termination or expiration of this Agreement. 
        2. Subscription Services. Subject to Customer’s payment of applicable fees, Teleo will make available and provide the Subscription Services during the Term. At the end of the Term, Subscription Services will cease and Teleo will, at its own expense, retake possession of the Licensed Hardware. 
        3. Support & Maintenance Services.  Teleo (or its Partner) will use commercially reasonable efforts to provide reasonable technical support services for the Teleo System during Teleo’s normal business hours.  Customer may contact Teleo at the email address and/or phone number set forth in the Order Form during Teleo’s normal business hours to request support services. As used herein, “normal business hours” means Teleo’s standard weekday hours of operations which are customary within Customer’s geography and which exclude regionally-observed holidays. Teleo will provide Customer with all Software updates that it generally makes available to its customers for no additional charge.  Where applicable, Customer will be responsible for ensuring that Software updates are put in use within the Hardware installed on Customer Equipment.  
        4. Training Services. Teleo will provide Customer with reasonable training services to allow Customer to be able to effectively use the Teleo System. Such training services will include safety training, which will be mandatory for all personnel who will be present at any Customer Site where the Teleo System will be located. Throughout the Term of this Agreement, Customer is responsible for ensuring that all personnel present at Customer Sites where the Teleo System operates have completed such safety training and have signed an attendance acknowledgement in a form to be mutually agreed on by Teleo and Customer. 
        5. Authorization. Customer authorizes Teleo to enter its premises, to access the Customer Equipment and the Teleo System, to retrofit their heavy equipment with the Hardware, to make any adjustments or modifications thereto that are necessary for Customer to perform the Services and to remove Licensed Hardware at the end of the Term of this Agreement. Teleo recognizes that the Customer Equipment may be located on sites which are owned or controlled by third parties. Customer acknowledges that it has the right to grant, and will grant, Teleo access to such third-party sites as provided for in this subsection. For clarity, any third party-owned or controlled sites will be considered “Customer Sites” for purposes of this Agreement. Teleo and any of its Partners, acting on behalf of Teleo, as a condition to entry onto any Customer Site, will comply with all reasonable safety and security rules and regulations applicable to such Customer Site that are provided to Teleo in writing or are posted at such Customer Site (including without limitation, confidentiality agreements, badging, safety orientation, consent to search etc.).
      3. Audio and Video Recordings. Customer acknowledges and agrees that its use of the Teleo System will include use of Hardware that contains sensors including, but not limited to, cameras, microphones, Lidar, Global Positioning System (GPS/GNSS), Inertial Navigation System (INS), Inertial Measurement Unit (IMU), etc. that will transmit video, audio, and other data recordings of the Customer Equipment and its surroundings to Teleo (collectively, the “Recordings”). Teleo may record, view, store, use, analyze, exploit, modify, disclose, distribute and retain any such Recordings solely for the following purposes: (i) as it deems necessary in order to provide the Teleo System and the Ancillary Services to Customer, (ii) to internally improve and develop the Teleo System and any other Teleo products or services, (iii) for auditing purposes to verify the work completion and (iv) for marketing purposes, provided that the Recordings will be anonymized to the best of Teleo’s abilities prior to any such marketing use. 
      4. Usage Data. Teleo may collect, analyze, exploit, use, modify, disclose, store, distribute and retain all Usage Data for any business purpose, provided that such Usage Data will not be disclosed to any third parties except (a) for employees, independent contractors, agents, service providers and subcontractors of Teleo who need access to such Usage Data in order to assist Teleo in carrying out its obligations under this Agreement or (b) that such Usage Data may be shared with or distributed to any third parties (including, but not limited to, disclosure to the general public) so long as such Usage Data does not identify Customer as the source or subject of such Usage Data. 
      5. Subcontractors.  The licenses granted by Customer to Teleo in this Section 2 extend to Teleo’s Partners and service providers, provided that Teleo remains liable for any such third party’s breach of this Agreement.
  • Customer’s Responsibilities.
      1. Customer’s Obligations.  Customer will provide Teleo with the following to enable Teleo to perform its obligations and exercise its rights under this Agreement: (a) access to Customer Sites and the Customer Equipment, including permission to retrofit such equipment with Hardware; (b) access (including remote access, if applicable) to Customer’s computer equipment, network systems, and any other services, personnel, information, tools, or materials reasonably necessary to enable Customer’s use of the Teleo System; (c) access to the Hardware to perform tests on, modify, and service the Hardware; and (d) all cooperation and assistance reasonably requested by Teleo.  Except as expressly provided for herein, Customer is responsible for and will bear all costs relating to (i) acquiring the necessary systems, personnel, teleoperation office space, and information for Customer to effectively access and use the Teleo System and (ii) maintaining the Hardware in good repair.  Customer is solely responsible, and Teleo will have no liability, for: (1) knowing and complying with any laws, rules, or regulations applicable to Customer’s use of the Teleo System; (2) obtaining and maintaining all required permits, consents and permissions in relation to Customer’s use of the Teleo System (including any permissions of its personnel or site visitors that may be required for Teleo to record and use the Recordings in accordance with Section 2.3); and (3) the security or privacy of any wireless network system or router used in connection with the Teleo System.  Customer will comply with all instructions from Teleo regarding the use, maintenance, and storage of the Hardware.  If for any reason other than a material defect in the materials or workmanship of the Hardware or damage to the Hardware caused by Teleo’s acts or omissions, the Hardware, while in the care, custody, or control of Customer: (i) becomes inoperative or malfunctions in any way, then Customer will pay Teleo all costs necessary to restore the Hardware to its original working condition; or (ii) is lost or damaged beyond repair, then Customer will pay Teleo all costs necessary to replace the Hardware.
      2. Restrictions.  Except as expressly provided for in this Agreement, Customer may not, and may not allow any third party to: (a) copy, modify, or create derivative works or improvements of the Teleo System (or any portion thereof); (b) reverse engineer, disassemble, decompile, modify, or alter the Teleo System (or any portion thereof); (c) rent, lease, loan, resell, sublicense, distribute, or otherwise commercially exploit or make available the Teleo System (or any portion thereof) to any third party; (d) encumber the Hardware with any lien or grant a security interest in the Hardware; (e) tamper with, remove, relocate out of the Customer Site, or otherwise interfere with the Hardware, including attempting to fix or repair the Hardware; (f) remove or alter any proprietary notices included in the Teleo System; or (g) use or access the Teleo System in order to develop or have developed any products, services, or other materials that compete with the Teleo System.  In the event that Teleo reasonably suspects any breach of the requirements of this Section 3.2, Teleo may suspend Customer’s access to the Teleo System, without advance notice, in addition to such other remedies as it may have in this Agreement, in law or in equity, until such breach has been remedied.  
      3. Provision of Feedback. During the Deployment, Customer will (a) cooperate with Teleo in evaluating the Teleo System and its current and new features; and (b) work with Teleo to identify and resolve any errors, problems or defects in the Teleo System discovered by Customer or Teleo. All feedback, comments, potential errors, suggestions for improvements and ideas about the Teleo System and the Ancillary Services that Customer provides to Teleo hereunder are referred to collectively as “Feedback”).
      4. Customer Equipment. Customer hereby acknowledges and agrees that the Licensed Hardware will remain personal property of Teleo and will not be considered a fixture, or an addition to, any part of the Customer Equipment or any Customer Site. Customer will ensure that no part of any Hardware become a part of any collateral that is subject to any lease or other security interest. Customer will not permit any modification of the Hardware, including any attachment of an apparatus not furnished by Teleo. If the Customer Equipment is not owned by Customer, then Customer will ensure that the Hardware is removed from the Customer Equipment prior to such Customer Equipment being returned to, or repossessed by, the lessor or owner of such Customer Equipment.
      5. Manufacturer Warranty. Customer and its Customer Equipment dealership and/or suppliers (the “Dealers”) are responsible for ensuring, and Customer hereby agrees to ensure, that the Customer Equipment is compatible with the Teleo System and that the installation of the Hardware and the use of the Teleo System in connection with the Customer Equipment will not void or adversely impact, in whole or in part, the warranty offered by the manufacturer of the Customer Equipment. Teleo will have no responsibility with respect to the foregoing, except that Teleo will provide Customer and its Dealers with all reasonable assistance that Customer requests in connection with Customer’s obligations under this Section 3.5. 
  • Fees and Payment.  
      1. Fees and Invoicing.  Customer will pay the fees, if any, specified in the applicable Order Form (the “Fees”).  All Fees are payable in U.S. Dollars and are non-refundable except as otherwise specifically set forth in this Agreement. Fees, if any, will be invoiced and paid in accordance with the applicable Order Form. If Customer’s account is fifteen (15) days or more overdue, in addition to any of its other rights or remedies, Teleo reserves the right to suspend Customer’s access to and use of the Teleo System, without prior notice or liability to Customer, until such amounts are paid in full.  Any payment not received from Customer by the due date may accrue, at Teleo’s discretion, late charges at the rate of one and a half percent (1.5%) of the outstanding balance per month, or at the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.  If Customer’s account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Teleo reserves the right to terminate this Agreement and reclaim or request delivery of any Hardware, with any related shipping costs paid by Customer.  
      2. Taxes.  All Fees are exclusive of all local, state, federal, and foreign taxes, levies, or duties of any nature (“Taxes”), and Customer is responsible for payment of all Taxes applicable in respect of all Fees or otherwise related to the provision and use of the Teleo System or the provision of Ancillary Services (excluding any taxes based on Teleo’s income) and any related penalties and interest.  Customer will make all payments of the Fees to Teleo free and clear of, and without reduction for, any withholding Taxes such that after making such payments, Teleo receives an amount equal to what it would have received if such deduction, withholding or payment had not been made.  Upon request, Customer will provide Teleo with official receipts issued by the appropriate taxing authority, or such other evidence as Teleo may reasonably request, to establish that such Taxes have been paid
      3. Reimbursable Expenses.  For any Ancillary Services provided onsite at Customer’s location, Customer will reimburse Teleo for all reasonable travel and out-of-pocket expenses (including ant Taxes in respect thereof) incurred by Teleo if such reimbursement is provided for in the applicable Order Form.  
  •      Proprietary Rights. 
      1. Customer IP.  As between Customer and Teleo, Customer owns all right, title, and interest in and to: (a) the Customer name and associated trademarks; (b) Customer’s Confidential Information; (c) the Customer Equipment and (d) all Intellectual Property Rights in the foregoing (collectively, the “Customer IP”).  Except as expressly set forth in this Agreement, no license or other rights to any of the Customer IP are granted to Teleo, and all such rights are hereby expressly reserved.  
      2. Teleo IP.  As between Teleo and Customer, Teleo or its Partners, service providers and/or licensors owns all right, title, and interest in and to: (a) Teleo’s name and logo, and all product names and trademarks associated with the Teleo System; (b) the Teleo System (including all portions and components thereof), the Documentation, and any and all enhancements, improvements, developments, derivative works, or other modifications made thereto, including any customizations made under this Agreement; (c) the Usage Data (subject to the restrictions on disclosure set forth in Section 2.4); (d) Teleo’s Confidential Information; (e) the Recordings (subject to the restrictions set on usage set forth in Section 2.3), and (f) all Intellectual Property Rights in the foregoing (collectively, the “Teleo IP”).  Except as expressly set forth in this Agreement, no license or other rights to any of the Teleo IP are granted to Customer, and all such rights are hereby expressly reserved. 
      3. Feedback.  Customer acknowledges and agrees that all Feedback will be the sole and exclusive property of Teleo.  Customer hereby irrevocably transfers and assigns to Teleo all of Customer’s right, title, and interest in and to all Feedback, including all Intellectual Property Rights therein.  At Teleo’s request and expense, Customer will execute documents and take such further acts as Teleo may reasonably request to assist Teleo to acquire, perfect and maintain its Intellectual Property Rights and other legal protections for the Feedback.
      4. Names and Logos.  Teleo will have the right to list Customer as a customer in written, oral, and electronic marketing materials (including on Teleo’s website), and use its name and logo for the foregoing purpose, provided that Teleo complies with any of Customer’s branding guidelines and instructions provided in writing to Teleo.  Except as expressly stated herein, all other use by a party of the other party’s name, logo, or trademarks will only be upon such party’s prior written consent.  
  •        Confidentiality.
      1. Confidential Information.  As used herein, “Confidential Information” means all information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, that is designated as “Confidential,” “Proprietary,” or the like and/or information that the Receiving Party should reasonably understand as being confidential or proprietary given the nature of the information and the circumstances of the disclosure, including without limitation, this Agreement and the terms set forth in the Order Form (which will be deemed Confidential Information of both parties).  Confidential Information will not include any information that: (a) is or becomes generally known to the public without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (b) was in the rightful possession or known by the Receiving Party prior to receipt from the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party who obtained such Confidential Information without any breach of any obligation owed to the Disclosing Party; (d) was independently developed by the Receiving Party without the Receiving Party’s breach of any obligation owed to the Disclosing Party or (e) is disclosed to a third party in response to a subpoena or order of a court or administrative agency, provided that the Receiving Party complies with section 6.3 below. 
      2. Protection.  Each party agrees not to disclose the other party’s Confidential Information, or use the other party’s Confidential information, for any purpose other than to perform its obligations or exercise its rights under this Agreement, and will protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own confidential information of like kind, but in no event will either party exercise less than reasonable care in protecting such Confidential Information.  The Receiving Party may disclose Confidential Information to its employees, agents, contractors, and other representatives and service providers having a legitimate need to know, provided that such parties are bound to confidentiality obligations no less protective of the Disclosing Party’s Confidential Information than this Section 6 and that the Receiving Party remains responsible for compliance by any such party with the terms of this Section 6.  
      3. Compelled Disclosure.  If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it will provide the Disclosing Party with prior written notice of such compelled disclosure and reasonable assistance (at Disclosing Party’s cost) if the Disclosing Party wishes to contest the disclosure or seek a protective order.  
      4. Remedies.  If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 6, the Disclosing Party will have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
  •        Representations and Warranties; Repair Obligation; Disclaimers. 
    1. Mutual Warranties.  Each party represents and warrants that: (a) it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation; (b) it has full right, power, and authority to enter into and perform its obligations under this Agreement; (c) this Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms; (d) the execution, delivery and performance of such party’s obligations under this Agreement will not result in a breach or conflict of, or constitute a default under, any instrument or other contract to which such party is bound and (e) it will comply with all applicable laws in carrying out its obligations under this Agreement.  
    2. By Customer.  Customer represents and warrants that it has all necessary rights, consents, and permissions to grant the rights and licenses granted by Customer under this Agreement, including, but not limited to, the rights, consents and permissions necessary to allow Teleo to exercise its rights with respect to the Recordings  under Section 2.3 and to allow Teleo to install the Hardware on the Customer Equipment.  In the event of a breach of any the foregoing warranty, in addition to any other remedies available at law or in equity, Teleo will have the right to immediately suspend Customer’s access to and use of the Teleo System to prevent harm to Teleo or its business.  If practicable, Teleo will provide notice and opportunity to cure.  Once cured, in Teleo’s reasonable discretion, Teleo will use reasonable efforts to promptly restore Customer’s access to the Teleo System.
    3. By Teleo.  

Teleo represents and warrants that: (i) the Teleo System will operate in material conformance with the Documentation; and (ii) it will perform its obligations hereunder in a professional and workmanlike manner in accordance with generally accepted industry standards for similar services.  Customer’s exclusive remedy, and Teleo’s sole obligation, for any such failure will be for Teleo to (a) use its commercially reasonable efforts to correct such non-compliance or (b) if such correction is not feasible, remove the System from Customer’s Equipment.  THE TELEO SYSTEM IS STILL IN THE DEVELOPMENT PHASE. TELEO DOES NOT REPRESENT OR WARRANT THAT THE TELEO SYSTEM IS OR WILL BE FREE FROM DEFECTS, AND CUSTOMER ACKNOWLEDGES THAT THE PRODUCT IS NOT FREE FROM DEFECTS.

  1. Repair Obligation. Teleo agrees to use commercially reasonable efforts to address any material defects in materials and workmanship in the Hardware (the “Limited Repair Obligation”) that arise during the one-year period after the Effective Date (the “Repair Term”). The foregoing Limited Repair Obligation does not apply to any defect resulting from (i) Customer’s handling, storage or use of the Hardware not in accordance with this Agreement, the Documentation and any operating specifications or instructions published or provided by Teleo; (ii) the negligence, accident, misuse, tampering, installation, maintenance or repair of the Hardware by a party other than Teleo’s personnel or a third-party service provider authorized by Teleo; (iii) any other cause beyond Teleo’s reasonable control, including but not limited to normal wear and tear and abuse, misuse or lack of proper care by Customer; (iv) use of hardware not provided by Teleo; (v) breakdowns, fluctuations, or interruptions in electric power or the telecommunications network; or (vi) a Force Majeure Event (as defined below) ((i) through (vi) being collectively referred to as “Exceptions”).  If any material defects in materials and workmanship affect the operation of  the Hardware during the Repair Term and Customer has provided Teleo with reasonable evidence of thereof, then (a) Teleo will repair or replace any defective Hardware, or (b) if Teleo determines that the foregoing will not remedy the material defect, then Teleo will accept the return of the Hardware, provide a prorated refund of any License Fees (as defined in the Order Form) actually prepaid by Customer for the Hardware during the applicable Order Form Term (as defined in the Order Form), and (as applicable) terminate this Agreement (or the applicable Order Form) as determined by Teleo in its discretion. Teleo’s foregoing obligation to repair or replace any defective Hardware is conditioned on Customer being current on the payment of all Fees due and payable as of the date of a request by Customer to repair or replace defective Hardware. If the Hardware or a component incorporated within it is no longer available, Teleo may replace the Hardware with a similar component of similar function, at Teleo’s sole discretion. THE FOREGOING IS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND TELEO’S EXCLUSIVE LIABILITY, FOR ANY DEFECTS IN THE HARDWARE. EXCEPT TO THE EXTENT ALLOWED BY APPLICABLE LAW, THE TERMS OF THIS PARAGRAPH DO NOT EXCLUDE, RESTRICT OR MODIFY ANY MANDATORY STATUTORY RIGHTS APPLICABLE TO CUSTOMER’S USE OF THE HARDWARE AND ARE IN ADDITION TO SUCH RIGHTS. 
  2. Disclaimers. EXCEPT FOR ANY WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 7, THE TELEO SYSTEM (INCLUDING ALL PORTIONS AND COMPONENTS THEREOF) AND ANY SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” AND TELEO DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL WARRANTIES, EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) OR STATUTORY, AS TO ANY MATTER WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE AND NON-INFRINGEMENT. TELEO DOES NOT WARRANT THE RESULTS OF USE OF THE TELEO SYSTEM, AND CUSTOMER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. CUSTOMER SHOULD NOTE THAT IN USING THE TELEO SYSTEM, SENSITIVE INFORMATION WILL TRAVEL THROUGH THIRD PARTY INFRASTRUCTURES WHICH ARE NOT UNDER TELEO’S CONTROL (SUCH AS A THIRD PARTY SERVERS). TELEO MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH THIRD PARTY INFRASTRUCTURES.
  •         Indemnification. 
      1. General Indemnification. Each Party (the “Indemnifying Party”) agrees to indemnify and hold the other party and its officers, directors, employees, agents and affiliates harmless from and against any losses, costs, liabilities and expenses, including reasonable attorneys’ fees (collectively, “Losses”), arising out of any third-party claim, suit or action related to (a) the breach by the Indemnifying Party of its representations, warranties and covenants made in Section 7, or (b) such Indemnifying Party’s gross negligence or willful misconduct. 
      2. Indemnification by Teleo. Teleo will indemnify and hold Customer and its officers, directors, employees, agents and affiliates harmless from and against any Losses arising out of (a) any third party claim, suit or action alleging that the Teleo System infringes upon any patent issued in the U.S. or any trademark rights or copyrights enforceable in the U.S., or misappropriates any trade secret (an “Infringement Claim”); or (b) any personal injury, death or damage to tangible property caused by any material defects in materials or workmanship of the Hardware. Teleo’s obligations under this Section 8.2 do not apply with respect to (i) an Infringement Claim to the extent such Infringement Claim arises from (1) any materials or components provided by any third party, (2) modification to the Teleo System made by any person other than Teleo personnel or authorized service providers of Teleo, or (3) Customer’s continued use of the allegedly infringing material after being notified thereof and instructed to cease use of the allegedly infringing material; (ii) any Claim (as defined below) arising in whole or in part due to the negligence or willful misconduct of Customer, use of the Teleo System not in accordance with this Agreement and the Documentation or any Exceptions; or (iii) any Claim arising due to the combination of the Teleo System (or any portion or component thereof) with the Customer Equipment or any other software or hardware not provided by Teleo.  If Teleo determines that the Teleo System is or may be subject to an Infringement Claim, Teleo may, at its option and expense, either procure for Customer a license to continue distributing such Teleo System, or replace or modify the allegedly infringing portion or component of the Teleo System.  If Teleo determines that neither of the foregoing is practical or otherwise reasonably available, Teleo may immediately terminate this Agreement and, upon such termination, will provide Customer with a prorated refund of any License Fees actually prepaid by Customer for the then-current Order Form Term. THE REMEDIES SET FORTH IN THIS SECTION 8.2 STATE THE SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY OF TELEO TO CUSTOMER INDEMNITEES IN RELATION TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, AND CUSTOMER’S AND ITS INDEMNITEES SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. 
      3. By Customer. Customer will indemnify and hold Teleo and its officers, directors, employees, agents and affiliates harmless from and against any Losses arising out of (a) any personal injury, death or damage to tangible property caused by any negligence or error in the operation or care of the Teleo System by Customer (including any individual operator authorized by Customer) or by any Exceptions (collectively, an “Injury Claim”); (b) any breach by Customer of Sections 2.2(e), 2.2(f), 3.1, 3.2, 3.4 or 3.5; and (c) any claim, suit or action by the lessor or owner of the Customer Equipment. In addition, Customer will promptly reimburse Teleo for any Losses incurred by Teleo as a result of an Injury Claim. 
      4. Procedure.  Each Indemnifying Party’s obligations set forth in this Section 8 are contingent on: (a) the other party (the “Indemnitee”) providing the Indemnifying Party with prompt written notice of any claim for which the Indemnitee is seeking indemnification under this Section 8 (a “Claim”), but only if the Indemnifying Party is materially and adversely prejudiced by failure to receive such notice; (b) the Indemnifying Party having the right to defend the Claim with counsel of its choosing; (c) the Indemnifying Party having the  right, in its sole discretion, to settle the Claim, provided that any such settlement will be subject to the written approval (which will not be unreasonably withheld, delayed or conditioned) of the Indemnitee if such settlement imposes any monetary or material non-monetary obligations on the Indemnitee (other than Indemnitee no longer using the Teleo System, if applicable) or includes any release of claims by Indemnitee as part of any such settlement; and (d) the Indemnitee providing (at the Indemnifying Party’s expense) such assistance and information as the Indemnifying Party may reasonably require to investigate, defend, or settle the Claim.
  •        Limitations on Liability. 
      1. Exclusions.  TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR: (a) A BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 6; (b) EACH PARTY’S RESPECTIVE INDEMNIFICATION OBLIGATIONS; (c) CUSTOMER’S BREACH OF SECTION 3.2; OR (d) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT (COLLECTIVELY, THE “EXCLUSIONS”), NEITHER PARTY MAY BE HELD LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, LOSS OF CONTENT OR DATA, COST OF COVER, OR INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, TELEO EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON ANY RESULTS OF CUSTOMER’S USE OR OPERATION OF THE TELEO SYSTEM OR ANY DECISIONS MADE BY THE CUSTOMER (INCLUDING BY THE OPERATOR) WITH RESPECT TO THE USE OF THE TELEO SYSTEM.  
      2. Liability Cap. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR THE EXCLUSIONS OR ANY AND ALL FEES OR PAYMENTS OWED BY CUSTOMER TO TELEO, NEITHER PARTY’S MAXIMUM CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, WILL EXCEED THE GREATER OF (a) $1,000 OR (b) THE FEES PAID BY CUSTOMER TO TELEO DURING THE TWELVE-MONTH PERIOD PRECEDING THE FIRST CLAIM. IN ADDITION, EACH PARTY’S MAXIMUM CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE EXCLUSIONS WILL NOT EXCEED $1,000,000. 
      3. Time-Barred Claims. Any claims that Customer may have against Teleo for damage to any Customer Equipment must be brought by Customer no later than the 15th day after the Teleo System is removed from the Customer Equipment, otherwise such claim will be time-barred.
  •    Term and Termination.
      1. Term.  This Agreement begins on the Effective Date and, unless earlier terminated pursuant to this Agreement, will continue for so long as there is an Order Form in effect (the “Term”). 
      2. Termination for Cause.  Either party may terminate this Agreement and/or any Order Form with immediate effect by giving the other party prior written notice, if the other party: (a) commits a material breach of any of its obligations under this Agreement, which breach is not cured within ten (10) business days following receipt of written notice, or the parties reasonably agree cannot be cured within ten (10) business days; (b) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (c) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (d) makes or seeks to make a general assignment for the benefit of its creditors; (e) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or (f) has wound up or liquidated its business, voluntarily or otherwise. Teleo may also terminate this Agreement and/or any Order Form immediately upon written notice to Customer in the event Customer infringes or otherwise violates Teleo’s Intellectual Property Rights.
      3. Effect of Termination.  Any termination of this Agreement will automatically result in the termination of all Order Forms outstanding hereunder, but any termination of a single Order Form without also terminating this Agreement will not affect any other Order Forms. Upon any termination or expiration of this Agreement and/or the applicable Order Form(s): (a) the rights and licenses granted to Customer under this Agreement or the applicable Order Form will automatically terminate; (b) Customer will cease all use of the Teleo System under the applicable Order Form(s) and delete, destroy, or return all copies of the applicable Documentation and Software in its possession or control; (c) Customer will make the applicable Hardware readily available for Teleo to uninstall and reclaim; (d)  Customer will be responsible for payment of any monies (including any Fees and expenses) due to Teleo for any period prior to the effective date of such termination and (e) only in the event of the termination of this Agreement, each party will return or destroy (and provide certification of such return or destruction upon request) any of the other party’s Confidential Information then in its possession, provided that each party may retain copies of the other party’s Confidential Information contained in computer files maintained pursuant to the Receiving Party’s customary archiving or back-up procedures (which retained copies will remain subject to the restrictions set forth in Section 6). In addition, if Teleo is terminating this Agreement or an Order Form early for cause under Section 10.2, then the Customer must pay the Termination Fee (as defined in the applicable Order Form) specified in the applicable Order Form(s), if any, within fifteen (15) days of such termination. 
      4. Survival.  Sections 1, 2.3, 2.4, 3.4, 4, 5, 6, 7, 8, 9, 10.4, 10.5 and 11 (together with all other provisions, including without limitation, all Order Forms and attachments hereto, that may be reasonably interpreted as surviving termination or expiration of this Agreement) will survive the termination or expiration of this Agreement.
  •      General.
    1. No Waiver.  This Agreement and any Order Form may not be altered, amended, or modified in any way except by a writing signed by both parties.  The failure of a party to enforce any provision of this Agreement or any Order Form will not be construed to be a waiver of the right of such party to thereafter enforce that provision or any other provision or right.
    2. Severability.  In the event that any provision of this Agreement is determined to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the rest of the Agreement will remain in full force and effect.
    3. Governing Law.  This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of California, without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.  Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the competent federal, state, and local courts in Santa Clara County, California in connection with any action arising out of or in connection with this Agreement.  
    4. Entire Agreement.  This Agreement constitutes the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter hereof.  In the event of a conflict between the terms of this Agreement and the terms of any Order Form, the Order Form will govern. With the exception of an Order Form, any purchase order, written terms or conditions, or other document that Customer sends to Teleo (whether prior to or after execution of this Agreement) that contains terms that are different from, in conflict with, or in addition to the terms of this Agreement are hereby rejected and will be void and of no effect.  
    5. Relationship.  Teleo and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between Teleo and Customer.  Neither party has any right or authority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other party, whether express or implied, or to bind the other party in any respect whatsoever.  This Agreement does not confer any benefits on any third party unless expressly stated therein.
    6. Force Majeure.  Except for Customer’s payment obligations, neither party will be liable for failure to perform or delay in performing any obligation under this Agreement if such failure or delay is due to fire, flood, earthquake, strike, war (declared or undeclared), embargo, blockade, legal prohibition, governmental action, riot, insurrection, damage, destruction, power outage, telephone outage, internet access, or any other similar cause beyond its control (each a “Force Majeure Event”).
    7. Assignment.  Neither party may assign or delegate its rights, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld, conditioned or delayed.  Any attempted assignment without such consent will be null and of no effect. Notwithstanding the foregoing, Teleo party may assign this Agreement in its entirety, upon notice to Customer but without the requirement to obtain consent, in connection with a merger, acquisition, corporate reorganization, or sale of Teleo’s equity or assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns. 
    8. Notices.  Any notice required or permitted by this Agreement will be in writing and will be sent by facsimile, email, courier, or personal delivery, addressed to the other party at the above address or at such other address for which such party gives notice hereunder.  Notice is effective upon receipt.