BY CLICKING THE BUTTON “COMPLETE (PURCHASE) ORDER” OR BY OTHERWISE PURCHASING AND/OR ORDERING A PRODUCT OR ENTERING INTO A CONTRACT THROUGH CUSTOMER’S ACCOUNT ON ICE’S ONLINE PLATFORM OR BY OTHER MEANS, CUSTOMER AGREES TO BE BOUND BY, THE FOLLOWING SUBSCRIPTION TERMS (THESE “TERMS”). THE INDIVIDUAL ACCEPTING THESE TERMS ON CUSTOMER’S BEHALF REPRESENTS AND WARRANTS THAT THEY HAVE THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS.
Pursuant to these Terms, ICE will sell a Machine subscription to the Customer, sell Equipment, and/or provide the Services identified on the checkout page or order form presented to Customer at the time that Customer accepted these Terms (the “Order”). ICE’s delivery and Customer’s use of the Products is subject to these Terms, together with any additional terms provided by ICE to Customer from time to time in connection with these Terms (the “Additional Terms”). These Terms, together with the Order referencing these Terms and all Additional Terms, are integrated into and comprise the “Agreement.”
1.1. “Agreement” has the meaning set forth in the preamble.
1.2. “Customer” means the entity identified in the Order as “Customer.”
1.3. “Customer Facilities” means the location(s) identified in the Order as “Customer Facilities”.
1.4. “Documentation” means all documentation, materials, or information, technical or otherwise, relating or used with respect to a Product, including specifications, operating manuals, user instructions, and technical literature, in any form, in each case provided or made available to Customer by ICE from time to time.
1.5. “Effective Date” means the date the Order is made.
1.6. “Equipment” means consumables, accessories, parts and the like used in connection with the Machines and purchased by Customer pursuant to the Order.
1.7. “ICE” means the entity identified in the Order as “ICE.”
1.8. “ICE Cobotics Portal” means the i-Synergy Services respective websites that can be found at www.icerobo.com, portal.icerobo.com, or at an alternate web address notified to Customer by ICE at the beginning of the Services, as well as any related applications.
1.9. “Machines” means the ICE cleaning machines provided to the Customer, as part of the subscription service, pursuant to the Order.
1.10. “Party” means ICE or Customer.
1.11. “Product(s)” means, collectively, the Equipment, Machines and Services.
1.12. “Section(s)”, means a section in this Agreement.
1.13. “Services” means the Support Services and the i-Synergy Services as further described in Part B and to which the Customer subscribes pursuant to the Order.
2.1. Generally. ICE shall deliver the Machines and/or Equipment to Customer’s Facilities or (if applicable) the alternative delivery location specified in the Order. If the Customer refuses to take delivery of a Machine and/or Equipment or fails to provide accurate information or instructions that are necessary for the delivery of such Machine and/or Equipment, then ICE may terminate this Agreement or charge a re-delivery fee.
Any purchased Equipment will be delivered DAP (ICC’s Incoterms 2020), unless otherwise stated in the Order Form.
2.2. Inspection. Customer will inspect all Machines and/or Equipment immediately upon delivery and will notify ICE no later than three (3) calendar days following delivery if the applicable shipment is incomplete or if any Machine and/or Equipment is damaged. If this period has lapsed Customer shall no longer be able to claim the shipment was incomplete and/or damaged upon delivery.
2.3. Delivery Date. ICE will use commercially reasonable efforts to provide Customer with an estimated delivery date for each Machine and unit of Equipment. However, such delivery date is a good faith estimate only and is not binding on ICE.
2.4. Title. The Machines are part of a subscription service and not sold to Customer. Nothing in these Terms will be deemed to give Customer title, or a right or option to purchase such Machines. ICE or its third-party suppliers will always retain title to the Machines.
2.5. Retention of Title. ICE withholds the right of ownership to any purchased Equipment, until Customer has paid the associated fees.
3.1. Use Requirements. Customer agrees to use the Machines and Equipment in compliance with this Agreement and the Documentation. Additionally, Customer agrees to:
3.1.1. implement all reasonable safety precautions during its use and operation of the Machines and Equipment;
3.1.2. ensure that the Machines are not exposed to water and are used and stored at all times (i) indoors and (ii) at the Customer Facilities;
3.1.3. upon discovering any actual or potential defects, damage, or malfunctions in the Machines and Equipment, promptly inform ICE and cease using the affected Machines and Equipment;
3.1.4. store the Machines in a secure, climate- and access-controlled location within the Customer Facilities using appropriate safety precautions to protect the Machines against damage and theft;
3.1.5. perform all routine maintenance on the Machines described in the Documentation, including replacing the bag and exhaust filter, and cleaning the brushes and debris tray;
3.1.6. conform the Customer Facilities to all specifications, including with respect to physical characteristics, obstructions, technical infrastructure, and the availability of power, in each case as set forth in the Documentation or otherwise specified by ICE; and
3.1.7. ensure that the Machines and Equipment are used solely by persons having (i) the necessary skills and training required to safely operate and use the Machines and Equipment in accordance with the Documentation and (ii) familiarity with the risks posed by the Machines and Equipment;
3.1.8. ensure that Customer’s use of the Machines and Equipment complies with all applicable legal and regulatory obligations and requirements.
3.2. Use Restrictions. Customer shall not, and shall not allow any third party to, directly or indirectly: (i) duplicate, reproduce, or otherwise copy any Product or Documentation (in whole or in part); (ii) modify, alter, improve, update, upgrade, downgrade, translate, reverse engineer, decrypt, decompile, disassemble, or create derivative works based on any Product or the Documentation (or their underlying components, software, ideas, source code or algorithms); (iii) license, sell, export, assign, transfer, lease, time-share, loan, or distribute any Product to a third party; (iv) remove, modify, deface, or replace any of ICE’s or any third party’s proprietary notices or marks which appear on, are affixed to, or are used in connection with a Product; (v) apply any polishing or protective coating, permanent marking, or treatment to the Machines and/or Equipment; (vi) perform any form of physical or chemical analysis, examination, or cleaning that may destroy, damage, or alter a Machine and/or Equipment; (vii) defeat, avoid, bypass, remove, deactivate or otherwise circumvent any security or protection mechanisms in a Product; or (viii) subject a Machine to any mechanic’s lien or other security interest.
3.3. Third-Party Use. Customer may allow its affiliates or a third-party contractor to operate, use or access the Products on Customer’s behalf at the Customer Facilities, solely for Customer’s direct beneficial business purposes. If Customer allows any person or entity to operate, use or access the Products, Customer shall be solely responsible for ensuring that such person or entity complies with this Agreement and with all applicable laws, and any breach by such third party of this Agreement will be deemed a breach by Customer.
3.4. Insurance. During the Term, Customer shall obtain and maintain the following minimum insurance coverage against liability arising in any way under this Agreement: (i) a commercial general liability insurance policy, including bodily injury, property damage, personal injury liability, and contractual liability with limits of not less than EUR 1,000,000 for each occurrence and EUR 2,000,000 annual aggregate endorsed to name ICE as additional insured; and (ii) an all-risk property insurance policy in an amount not less than the full replacement value of the Machines. Each such policy shall include ICE as loss payee with regard to any damage to the Machines. Each policy will contain a waiver of subrogation in favor of ICE. Customer’s insurance shall be primary and without contribution of other insurance which may be in force. The policy coverage shall begin no later than the date on which the first Machine is delivered to Customer and end no earlier than the date on which the last Machine is returned to ICE in accordance with this Agreement. Customer shall provide a certificate of insurance to ICE (i) within five (5) business days after the date the Products are delivered at Customer’s Facilities or (if applicable) the alternative delivery location specified in the Order, and (ii) annually within five (5) business days of policy renewal, demonstrating all required coverages are in force. Any insurance policy limits under this Section, or any failure by Customer to secure the required insurance coverage, shall not limit Customer’s liabilities and obligations pursuant to this Agreement.
3.5. Cooperation. Customer shall reasonably cooperate with ICE as necessary to enable ICE to perform its obligations under this Agreement. Such cooperation will include, without limitation, providing all information reasonably requested by ICE that is necessary for its performance under this Agreement. ICE may charge to Customer additional costs and fees in connection with any delay resulting from Customer’s failure to provide the foregoing cooperation. Furthermore, ICE shall have no liability to Customer under this Agreement to the extent arising as a result of incorrect or incomplete information provided by Customer.
4.1. Fees. All fees associated with Products under the Order (including one-time and recurring fees), together with any additional fees set forth in the Order (collectively, the “Fees”) will be (a) charged by ICE on or after the last day of each month to the payment method provided by the Customer at the time of the Order or otherwise associated with Customer’s account, or (b) paid by Customer within seven (7) days after Customer receives the corresponding invoice from ICE, as specified in the applicable Order. If ICE is unable to complete an automatic charge as described in part (a) of the immediately foregoing sentence, then Customer shall pay the applicable Fees in accordance with part (b).
4.2. Non-Payment. Failure to timely pay Fees in accordance with Section 4.1 will be a material breach of this Agreement, and Customer will reimburse ICE for any and all costs and expenses (including legal and attorneys’ fees) incurred by ICE in connection with the collection of unpaid Fees. Without limiting any other rights or remedies that may be available to ICE under this Agreement, late payments will accrue interest at the lesser of 1.5% per month and the highest rate allowed by applicable law (if any). The interest will accrue daily, beginning on the first day that the applicable payment is late and ending on the day on which Customer pays in full all overdue Fees, including accrued interests and costs. If Customer fails to pay any amount due under this Agreement according to the payment terms of the Order, ICE may, in its sole discretion, disable or repossess the Machines and terminate this Agreement (in whole or in part), in addition to all other rights and remedies that may be available to ICE under this Agreement or the applicable law.
4.3. Currency. Unless otherwise stated in the applicable Order, all Fees are set forth in, and payments must be made in Euros unless this is set differently for specific regions.
4.4. Taxes. The Fees do not include, and Customer is responsible for paying, any foreign or domestic taxes or charges of any kind that may be applicable to this Agreement (including without limitation excise, sales, use, or value-added taxes; customs or other import duties; or other taxes, tariffs or duties), other than taxes based on ICE’s net income.
4.5. Modification. ICE shall be entitled at any time and from time to time to modify recurring Fees on a forward-going basis by giving at least 90 days’ notice to Customer, which modification will become effective at the beginning of the next Renewal Term after the 90-day notice period.
5.1. Effective Date. This Agreement is effective from the Effective Date.
5.2. Subscription Term. Unless terminated earlier in accordance with this Agreement, the initial subscription term is 36 months from the date the Products are delivered at Customer’s Facilities or (if applicable) the alternative delivery location specified in the Order (the “Initial Term”). The Initial Term automatically renews for successive twelve (12) month periods (each, a “Renewal Term”) unless either Party notifies the other Party in writing at least thirty (30) days prior to such renewal of its desire to terminate this Agreement. The Initial Term and each Renewal Term are, collectively, the “Subscription Term”.
5.3.1. Unless otherwise set forth in an applicable Order, Customer may early terminate this Agreement for convenience effective as per the last day of any month of the Subscription Term by giving ICE at least sixty (60) calendar days’ written notice. The Customer may give such notice only after the third month of the Subscription Term. Customer acknowledges that it will remain liable for any Fees until the effective date of termination of the Subscription Term.
5.3.2. Customer may terminate this Agreement upon written notice if ICE materially breaches this Agreement and fails to cure such breach within thirty (30) calendar days of receiving written notice of the breach from Customer.
5.3.3. ICE may terminate this Agreement, in whole or in part, (a) upon written notice if Customer materially breaches this Agreement and fails to cure such breach within thirty (30) calendar days of receiving written notice of the breach from ICE; (b) effective immediately and without notice for any material breach incapable of cure (including, without limitation, breach of provisions related to confidentiality and late payment); (c) effective immediately by written notice, in case of a formal (request for the) suspension of payment or liquidation, or any other insolvency proceedings or situation of the Customer, (d) in case Customer threatens to cease its business or a material part thereof; (e) in case of Force Majeure as referred to under Section 11.4.
Material breaches of Customer include in any event, but are not limited to, breach of (i) use requirements and restrictions, as set out in Sections 3.1 and 3.2, (ii) insurance requirements in Section 3.4, (iii) payment obligations in accordance with Section 4.1, and (iv) breach of confidentiality (Section 10).
ICE’s right to terminate this Agreement is notwithstanding any other rights it may have under the Agreement.
5.3.4. Other than in accordance with the terms of this Agreement, Customer cannot terminate, annul, rescind or otherwise end this Agreement.
5.4. Effect of Termination or Expiration. Upon expiration or termination of this Agreement Customer shall return the Machines to ICE promptly in accordance with this Section 5.4 (second paragraph), and (except as set forth in Section 7.2) Customer shall not be entitled to any refund of prepaid amounts. Upon termination other than in accordance with Sections 5.3.1, 5.3.2 or the Order, all Fees that would have been payable by Customer during the remainder of the then-current Initial Term or Renewal Term had the Agreement not been terminated will become immediately due and payable.
Customer will ensure that the condition of all Machines returned to ICE in accordance with this Section 5.4 is substantially similar to the condition of such Machines when received by Customer, excluding ordinary wear and tear. All Machines will be returned in accordance with the packaging instructions provided by ICE and accompanied by all related Documentation. During any period of time that a Machine is within Customer’s possession, control, or care (which will be deemed to include the period of time during which a Machine is in transit after being returned to ICE by Customer), Customer will be solely responsible for any loss of, or damage to, such Machine and will compensate ICE for the same. Customer is responsible for packaging the Machines to be returned in a manner that protects them against loss and damage during transit. Any termination of the Agreement shall discharge ICE from any liability for further performance and – notwithstanding Customer’s obligation to promptly return the Machines – shall entitle ICE to enter Customer’s premises and recover any Machines and any other materials which are the property of ICE or its suppliers. This particularly applies in case of termination under Section 5.3.3 (c).
5.5. Survival. Sections 1, 3, 4, 5.4, 5.5, 6.2, 7, 8, 9, 10, and 11, will survive any termination or expiration of this Agreement.
6.1. ICE Machine Warranty. ICE warrants to Customer that each Machine will, during the Subscription Term (the “Machine Warranty Period”), conform in all material respects to the applicable specifications set forth in the Documentation for such Machine. If Customer notifies ICE in writing during the Machine Warranty Period that a Machine does not satisfy the warranty set forth in the immediately foregoing sentence, then ICE’s sole and exclusive obligation, and Customer’s sole and exclusive remedy, will be for ICE to repair or replace (including with a refurbished unit) the defective Machine, at ICE’s sole discretion. Customer agrees to provide any additional details concerning the potential defect requested by ICE, including a description of the malfunctions and circumstances under which they occurred. The warranty set forth in this Section 6.1 will not apply to the extent the warranty failure is caused by any of the following (each, a “Warranty Exclusion”):
6.1.1. modifications or alterations made to a Machine or any Equipment other than as authorized by ICE;
6.1.2. the combination, operation or use of a Machine or any Equipment with software, hardware, or other technology not provided by ICE and approved for use in connection with the Machine;
6.1.3. failure by Customer to use or implement corrections, enhancements, modifications, or upgrades provided to Customer by ICE;
6.1.4. failure by Customer to use a Machine or any Equipment in accordance with the applicable Documentation; or
6.1.5. breach by Customer of this Agreement, including in particular Section 3.1
6.2. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 6.1, THE PRODUCTS ARE PROVIDED “AS IS”, ICE MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ICE EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE. ICE DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PRODUCTS. ICE DOES NOT WARRANT THAT THE PRODUCTS ARE ERROR-FREE OR THAT OPERATION OF THE PRODUCTS WILL BE SECURE OR UNINTERRUPTED.
7.1. Indemnification by ICE. ICE shall indemnify, defend and hold Customer and its officers, directors, employees, agents, and stockholders harmless from and against any and all third-party claims alleging that the use of the Machines by Customer in accordance with this Agreement infringes a third party’s intellectual property rights, in each case to the extent that the alleged infringement is not attributable to (a) an act or omission by Customer that would constitute a Warranty Exclusion or breach of this Agreement by Customer or (b) materials or information provided by Customer.
7.2. Infringement Remedies. If any Machine is, or in ICE’s opinion is likely to be, held to infringe the intellectual property rights of a third party, then ICE may at its expense and option either: (i) procure the right for Customer to continue using such Machine, (ii) modify or replace the Machines with a non-infringing equivalent, or (iii) if neither (i) nor (ii) is commercially practicable, terminate this Agreement in whole or in part and refund to Customer a prorated amount of the pre-paid Fees for the affected Machine calculated as of the effective date of such termination. ‘
7.3. Sole and Exclusive Remedy. The foregoing remedies in Section 7.2 constitute the sole and exclusive remedies of Customer, and the entire liability and obligation of ICE, with respect to claims of infringement related to any Machine.
7.4. Indemnification by Customer. Customer shall indemnify, defend and hold ICE and its officers, directors, employees, agents and stockholders, harmless from and against any and all third-party claims arising out of, relating to or caused by (a) an act or omission by Customer that would constitute a Warranty Exclusion or breach of this Agreement by Customer; or (b) materials or information provided by Customer; or (c) any negligence or willful misconduct of Customer or Customer’s personnel.
7.5. Indemnification Procedure. A Party seeking indemnification pursuant to this Section 7 (the “Indemnified Party”) shall: (a) promptly notify the Party from which indemnification is sought (the “Indemnifying Party”) in writing of the claim for which indemnification is sought (“Claim”) (provided that failure to provide such notice promptly shall not relieve the Indemnifying Party of its obligations under this Section 7 to the extent such failure does not materially prejudice the Indemnified Party); (b) make all reasonable efforts to provide the Indemnifying Party with all information and material in the Indemnified Party’s possession regarding the Claim; (c) furnish to the Indemnifying Party such assistance as the Indemnifying Party may reasonably request in connection with the investigation, settlement and defense of the Claim (at the Indemnifying Party’s expense); and (d) grant the Indemnifying Party sole control over the defense and settlement of the Claim, provided, however, that the Indemnifying Party shall not dispose of or settle any such Claim in any manner requiring more than the payment by Indemnifying Party of an amount fully indemnified hereunder.
8.1. Disclaimer of Damages. SUBJECT TO SECTION 8.3, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, ICE SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF BUSINESS OR REPUTATIONAL DAMAGES, EVEN IF ICE IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
8.2. Cap on Liability. SUBJECT TO SECTION 8.3, UNDER NO CIRCUMSTANCES WILL ICE’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, INDEMNIFICATION, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO ICE UNDER THE ORDER, EXCLUSIVE OF any TAXES.
8.3. Exceptions. The liability caps set forth in Sections 8.1 and 8.2 shall not apply to liability resulting from ICE’s fraud, gross negligence or willful misconduct.
9.1. Retention of Rights. Nothing in this Agreement shall be deemed to cause the transfer or assignment of any right, title, or interest, including any intellectual property rights, in or to a Machine. Customer hereby agrees and acknowledges that Customer does not own the Machines or i-Synergy Services, or any intellectual property rights therein, and all rights not expressly granted to Customer herein are retained by ICE or its third-party licensors or suppliers. Customer shall not, either directly or indirectly, take any action to challenge such rights.
9.2. Feedback. ICE will own all right, title and interest, including all intellectual property rights, in and to any suggestions, comments, or feedback provided by Customer that relates to a Product (including bug reports and enhancement requests), and Customer hereby assigns such rights, title, and interest to ICE. Customer acknowledges that suggestions, comments and feedback may be used without restriction by, and are the Confidential Information of, ICE.
10.1. Definition. As used herein, “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally, visually, in writing, or by inspection of tangible objects, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of its disclosure. ICE’s Confidential Information includes all Products, Documentation, and related technology and technical information made available to Customer by ICE pursuant to this Agreement. However, Confidential Information does not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use of or reference to the Confidential Information.
10.2. Protection of Confidential Information. The Receiving Party will (a) not disclose or use any of the Disclosing Party’s Confidential Information for any purpose outside the scope of this Agreement; (b) protect the confidentiality of the Disclosing Party’s Confidential Information using the same degree of care that the Receiving Party uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); and (c) limit access to Disclosing Party’s Confidential Information to those of its employees, contractors, and agents who need such access to enable such Party to exercise its rights and perform its obligations under this Agreement and who have signed confidentiality agreements with the Receiving Party at least as protective of Disclosing Party’s Confidential Information as this Agreement. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so (including upon formal request of a judicial or administrative authority), provided the Receiving Party gives the Disclosing Party prior notice of any such compelled disclosure (to the extent legally permitted).
11.1. Publicity. ICE may use Customer’s name and logo on its website and in its promotional materials to identify Customer as an ICE customer.
11.2. Notices. All notices hereunder shall be in writing and given by email, by registered or certified mail, postage and registration fees prepaid, return receipt requested, or by overnight mail by a nationally recognized courier service, and shall be deemed given (a) when mailed to a Party at the address set forth in the Order or (b) when emailed to (i) the email address associated with Customer’s account on ICE’s online platform, in the case of notice by ICE or (ii) email@example.com, in the case of notice by Customer.
11.3. Compliance. Each Party will perform its obligations under this Agreement in compliance with all applicable laws, including international, national, state, and local laws and regulations. Customer represents and warrants that, prior to entering into the Order, it has notified ICE of any technical or legal requirements that may affect ICE and that result from Customer’s legal or regulatory obligations.
11.4. Force Majeure. In no event shall ICE be liable for any failure or delay in its performance of this Agreement due to causes or circumstances beyond its reasonable control (“Force Majeure”). Notwithstanding any other rights ICE may have under this Agreement, in case of Force Majeure, ICE may – in whole or in part - suspend its obligations under the Agreement.
11.5. Governing Law. This Agreement is construed in accordance with and shall be governed by the laws of the country in which ICE is located, with explicit exclusion of its conflict of laws rules.
11.6. United Nations Convention on Contracts for the International Sale of Goods. The applicability of the UN Convention on Contracts for the International Sale of Goods (Vienna Convention) is hereby explicitly excluded.
11.7. Rechtsmacht. Jurisdiction. Each of the Parties irrevocably consents to the exclusive jurisdiction and venue of the competent court of the country in which ICE is located. This is without prejudice to Parties’ rights to seek an injunctive relief before the competent court in the country in which ICE is located.
11.8. Relationship of the Parties. The Parties are independent contractors and this Agreement does not create a partnership, joint venture or agency relationship.
11.9. Assignment. Customer may not assign its rights without the prior written consent of ICE, and any attempted assignment is void. ICE may assign its rights and obligations under this Agreement without notice.
11.10. Severability. If any provision of this Agreement is held void, voidable, invalid or unenforceable by a court of competent jurisdiction, the Parties will amend that provision in good faith to reflect as nearly as possible the original intentions of the Parties in accordance with applicable laws. The remaining provisions of this Agreement will remain valid and enforceable to the full extent permitted by law.
11.11. Waiver. Neither Party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
11.12. Entire Agreement. This Agreement contains the Parties’ entire understanding relating to the subject matter thereof, supersede all prior or contemporaneous agreements between the Parties relating to such subject matter, both oral and written. Any conflicting or additional terms contained in any Customer purchase orders or other documents not executed by the Parties are hereby specifically objected to, do not apply, and will be of no effect. If there are any conflicts or inconsistencies between the Order, these Terms, and any Additional Terms, the terms of the Order shall control, followed by the Additional Terms, followed by these Terms.
11.13. English version and local translation of these Terms. If there are any conflicts or inconsistencies between this English language version of the Terms and the local translation of the Terms in the language of the country in which ICE is located, the local translation of the Terms shall prevail.
11.14. Amendments and Changes. ICE reserves the right to change this Agreement on a going-forward basis at any time upon notice to Customer. Immaterial modifications become effective on the date of such notice. Material modifications become effective upon the earlier of (a) Customer’s acceptance of the modified Agreement and (b) thirty (30) days after ICE having given notice of such modified terms, unless Customer provides written notice to ICE rejecting the modifications prior to the occurrence of (a) or (b) in which case Customer will receive a refund of any prepaid Fees. The qualification of the modification, i.e. whether it is an immaterial or material modification, is to ICE’s sole discretion.
11.15. Except as expressly permitted in this Section 11.13, this Agreement may be amended only by a written agreement signed by authorized representatives of the Parties. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose.
11.16. Subcontracting. ICE may subcontract any of its obligations under this Agreement, provided that ICE will remain liable for all acts or omissions of its subcontractors in the course of their performance of such obligations.
This Part B sets out the terms and conditions that apply between ICE and the Customer in relation to the Support Services and the i-Synergy Services, and apply in addition to Part A. If there are any conflicts or inconsistencies between Part A and Part B, the terms of Part B shall control.
1.1. During the period specified in the Order, ICE will provide to Customer:
1.1.1. initial on-site deployment and training for continued operation of the Products; and
1.1.2. technical support for the Products for which the support services are to be provided, (the “Support Services”) all as specified in the Order.
1.2. Customer may receive Support Services by contacting ICE’s customer care team by email or by telephone at the address and telephone number as set out at ICE’s website. Telephone Support Services are available during ICE’s regular business hours in the country where the Products are provided, Monday through Friday, excluding ICE-designated holidays.
1.3. Notwithstanding anything to the contrary in the Agreement, ICE shall have no obligation to provide Support Services if such Support Services are necessitated in whole or in part by a Warranty Exclusion.
2.1. License to i-Synergy. During the Subscription Term, ICE will provide access to the Customer to the ICE Cobotics Portal (the “i-Synergy Services”) in accordance with the terms of the Agreement (including the payment of all Fees), and ICE grants Customer a non-exclusive, non-sublicensable and non-transferable right to access to use the i-Synergy Services in connection with the Products, solely for its internal business purposes, during the Subscription Term.
2.2. I-Synergy Warranties
2.2.1. Warranty. ICE warrants to Customer that, during the Subscription Term, the i-Synergy Services will perform materially in accordance with the applicable Documentation. If Customer notifies ICE in writing during the Subscription Term that the i-Synergy Services do not conform to this warranty, then ICE’s sole and exclusive obligation, and Customer’s sole and exclusive remedy, will be for ICE to update the i-Synergy Services to correct the non-conformity. The foregoing warranty will not apply to the extent the warranty failure is caused by a Warranty Exclusion.
2.2.2. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTY PROVIDED IN SECTION 2.2.1, THE I-SYNERGY SERVICES ARE PROVIDED “AS IS”, AND ICE MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. SUPPLIER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE. ICE DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PRODUCTS OR AGAINST INFRINGEMENT. ICE DOES NOT WARRANT THAT THE PRODUCTS ARE ERROR-FREE OR THAT OPERATION OF THE PRODUCTS WILL BE SECURE OR UNINTERRUPTED OR THAT ANY CONTENT, INCLUDING CUSTOMER DATA, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.
2.3. I-Synergy Indemnification. Customer shall indemnify, defend and hold ICE and its officers, directors, employees, agents and stockholders, harmless from and against any and all third-party claims arising out of, relating to or caused by Customer Data (including, without limitation, Customer’s failure to comply with applicable data protection laws and its obligations relating to Customer Data as set forth herein).
2.4. Customer Data
2.4.1. Customer Data. Customer retains all right, title, and interest, including all intellectual property rights, in and to any data or information (a) that Customer uploads or inputs into the i-Synergy Services or otherwise makes available to ICE or (b) is captured and collected by a Machine deployed at the Customer Facilities (the “Customer Data”).
2.4.2. Customer Data License. Customer hereby grants ICE a non-exclusive, worldwide, royalty-free, fully paid, sublicensable, fully transferable, irrevocable license to use, process, transmit, store, and disclose the Customer Data: (a) during the Subscription Term, for the purpose of performing its obligations under this Agreement and (b) in perpetuity, in a form that does not identify Customer as the source thereof, for its business purposes, including to develop and improve ICE’s products and services.
2.4.3. Customer Data Warranties. Customer represents and warrants that it has the full right and authority to collect and provide to ICE and its third-party service providers the Customer Data and to grant ICE the licenses and rights set forth in this Agreement. Customer represents and warrants that ICE’s use of the Customer Data in accordance with this Agreement will not: (i) breach the provisions of any applicable law, statute or regulation or (ii) infringe the intellectual property rights, privacy rights or other rights of any third party.
2.4.4. Usage Data. Notwithstanding anything to the contrary, ICE shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Products and i-Synergy Services and related systems and technologies (“Usage Data”). Usage Data may include personal data. For clarity, the Usage Data is not Customer Data. As between ICE and Customer, ICE owns all right, title, and interest, including all intellectual property rights, in and to (a) the Usage Data and (b) any improvements to any Products, i-Synergy Services or other products and services made as a result of ICE’s use, processing, or generation of Customer Data or Usage Data.
2.5. Third Party Platforms. The i-Synergy Services may enable Customer to link to, transmit Customer Data to, or otherwise access, other websites, information, products, services, and platforms of third parties (e.g., device operating systems, social media platforms, wireless carriers, APIs and plug-ins) (“Third-Party Platforms”). ICE does not control and is not responsible for such Third-Party Platforms. Customer shall be responsible for complying with the terms and conditions required by such Third-Party Platforms and Customer acknowledges that it is solely responsible for all risks associated with its access to and use of such Third-Party Platforms.
2.6. Customer Obligations
2.6.1. Generally. Customer is responsible for meeting all technical requirements set forth in the Documentation, including as they relate to the Customer Facilities and Customer’s infrastructure. Without limiting the immediately foregoing sentence, Customer understands that it is responsible for ensuring that the Machines used in connection with the i-Synergy Services have access to Internet and cellular network connections. ICE makes no warranties regarding Internet or cellular connection. If Customer fails to pay any Fees or otherwise breaches the Agreement, ICE may, in its sole discretion, suspend or restrict the provision of i-Synergy Services, in addition to any other rights or remedies available to ICE.
2.6.2. Routine Maintenance. Customer agrees that, as part of the routine maintenance performed by Customer pursuant to the Agreement, Customer will at all times ensure that the cameras, sensors and other external components of each Machine used for autonomous navigation are clean and undamaged before operating such Machine.
3.1. Survival. Sections 2.2.2, 2.4, 2.5, and 3 of this Part B will survive the termination or expiration of the Agreement.