Terms & Conditions

Hardware & Software Subscription Agreement

This Subscription Agreement ("Agreement") is made and entered into by and between Reotemp Instruments ("Reotemp," "we," "us") and the customer executing an order for the Services ("Subscriber," "you," "your").

This Agreement governs the provision and use of Reotemp's hardware, software, and support services ("Services"). By placing an order, Subscriber agrees to be bound by these terms.

1. Subscription Term and Termination

1.1. Initial Term: This Agreement commences on the date the order is placed and shall continue for a minimum "Initial Term" of twelve (12) consecutive months. The subscription is billed monthly.

1.2. Early Termination by Subscriber: This Agreement provides for a 12-month minimum commitment. If Subscriber terminates this Agreement for any reason prior to the expiration of the Initial Term, Subscriber shall be immediately liable for an Early Termination Fee. The Early Termination Fee shall be an amount equal to the monthly Subscription Fee multiplied by the number of months remaining in the Initial Term. For example, if the Subscriber cancels after six (6) months, the Subscriber will be billed for the remaining six (6) months of the Initial Term in a single final invoice.

1.3. Renewal Term: After the expiration of the Initial Term, this Agreement shall automatically renew on a month-to-month basis ("Renewal Term") at the then-current monthly Subscription Fee.

1.4. Termination After Initial Term: During any Renewal Term, either party may terminate this Agreement for any reason by providing the other party with at least ninety (90) days' written notice.

1.5. Termination for Cause: Either party may terminate this Agreement for a material breach by the other party, provided that the non-breaching party gives written notice of the breach and the breaching party fails to cure such breach within thirty (30) days of receiving the notice. Failure to pay Subscription Fees is considered a material breach by Subscriber.

2. Fees, Billing, and Payment

2.1. Subscription Fees: Subscriber shall pay the monthly Subscription Fee as specified in the order. Fees are quoted and payable in U.S. Dollars. The initial costs for a Custom Crate and one-way shipping of the Hardware to the Subscriber's designated location are included in the Subscription Fee. For shipping locations outside the continental United States, additional shipping charges may apply.

2.2. Billing Commencement and Cycle: Billing commences, and the first month's Subscription Fee is charged, at the time the order is placed. The subscription will then be billed automatically at the agreed monthly rate every thirty (30) days thereafter throughout the Initial Term and any Renewal Term, until the Agreement is terminated in accordance with Section 1.

2.3. Non-Payment, Suspension, and Termination: In the event of a failed or late payment, Reotemp reserves the right to: (a) charge interest on the past-due amount at a rate of 1.5% per month or the maximum rate permitted by law, whichever is less; (b) immediately suspend or terminate Subscriber's service, whereupon the Hardware (probes) will no longer function and Subscriber's access to the cloud software application will be terminated; and (c) retain Subscriber's data for a period of ninety (90) days following the termination of service, after which it may be permanently deleted.

2.4. No Refunds: All Subscription Fees are non-refundable, except as expressly provided herein.

3. Scope of Services

3.1. Software License: Reotemp grants Subscriber a limited, non-exclusive, non-transferable, revocable license to access and use Reotemp's cloud software application ("Software") during the Term. This includes access to automatically generated temperature reports and alarm notifications via text and email.

3.2. Provided Hardware: The subscription includes the necessary wireless probes, gateways, and lightning arrestors ("Hardware") to operate the system as specified in the order.

3.3. Support and Maintenance: During the Term, Reotemp shall provide: (a) technical product and software support via phone or email during standard business hours; (b) all routine system maintenance and software updates; and (c) replacement batteries for Hardware as needed during normal operation.

3.4. Standard Hardware Replacement: Reotemp will, as part of the Services, provide reasonable replacement or repair of Hardware (including probes, gateways, etc.) that fails due to normal wear and tear or manufacturing defect at no additional charge to Subscriber. This is contingent upon Subscriber's cooperation with remote troubleshooting efforts.

3.5. Non-Standard Hardware Replacement: The Standard Replacement obligation in Section 3.4 does not apply to Hardware that is damaged, lost, stolen, or fails due to: (a) misuse, abuse, neglect, or improper installation by Subscriber; (b) accidents, fire, flood, power surges, or other events outside of Reotemp's reasonable control (Force Majeure); or (c) modification or repair by any party other than Reotemp. Subscriber will be billed the full retail price for the replacement of any Hardware under these conditions.

4. Hardware Title, Use, and Return

4.1. Title to Hardware: Subscriber acknowledges that this is a subscription agreement. The Hardware is provided on a lease/subscription basis and is, and shall remain, the sole and exclusive property of Reotemp Instruments. Subscriber has no right, title, or interest in the Hardware except as a lessee under this Agreement.

4.2. Subscriber Obligations: Subscriber shall not: (a) modify, reverse-engineer, decompile, or disassemble the Hardware or Software; (b) sub-lease, sell, or transfer the Hardware to any third party; (c) obscure or remove any serial numbers, labels, or other identifying marks on the Hardware; (d) use the Services for any illegal, fraudulent, or hazardous purpose; (e) use the Services in any high-risk environment that requires fail-safe performance (e.g., life-support systems, nuclear facilities); (f) use the Services to measure materials that require explosion-proof ratings or approvals; or (g) use the Services, or any data derived therefrom, to build a competitive product.

4.3. Return of Hardware: Upon the termination or expiration of this Agreement for any reason, Subscriber shall, at its own expense: (a) cease all use of the Hardware and Software; (b) securely package all Hardware (probes, gateways, etc.) in the original Custom Crate or equivalent protective packaging; and (c) return all Hardware to the address specified by Reotemp within fourteen (14) days of the termination date.

4.4. Failure to Return: If Subscriber fails to return the Hardware in good working condition (reasonable wear and tear excepted) within the 14-day period, Reotemp reserves the right to bill Subscriber for the full retail replacement value of the unreturned Hardware.

5. Data, Privacy, and Confidentiality

5.1. Data Ownership and License

5.1.1. Subscriber Data. Subscriber shall own and retain all right, title, and interest in and to all data, metadata, sensor readings, and reports generated from Subscriber's use of the Hardware and Software ("Subscriber Data").

5.1.2. License to Reotemp. Subscriber grants Reotemp a limited, non-exclusive, royalty-free, worldwide license to use, copy, modify, and process the Subscriber Data solely for the purpose of providing the Services to Subscriber during the Term.

5.1.3. Reotemp's Rights. Reotemp shall have the right to collect and analyze data relating to the provision, use, and performance of the Services. Subscriber agrees that Reotemp may (i) use such data to improve and enhance the Services and (ii) use such data in an aggregated and anonymized format (that does not identify Subscriber) for industry analysis, benchmarking, and other business purposes. Reotemp shall own all right, title, and interest in and to such aggregated and anonymized data.

5.2. Confidentiality: Each party ("Receiving Party") agrees to hold in confidence all non-public information, including the terms of this Agreement, pricing, technical specifications, and trade secrets ("Confidential Information") disclosed by the other party ("Disclosing Party"). The Receiving Party shall not disclose or use such Confidential Information except for the purpose of performing its obligations under this Agreement. These obligations shall not apply to information that is: (a) publicly known, (b) rightfully received from a third party, or (c) required to be disclosed by law or court order.

6. Installation and Implementation

6.1. Installation Support: At the time of Hardware delivery, Reotemp will provide reasonable remote assistance to Subscriber's team with the implementation, set-up, software training, and activation of the railcars (or other applicable assets).

6.2. Subscriber's Responsibility: Subscriber is responsible for providing a suitable operating environment, including any necessary power and internet connectivity, as specified in Reotemp's documentation.

7. Disclaimer of Warranties, Liability, and Indemnification

7.1. Disclaimer of Warranties: EXCEPT FOR THE EXPRESS COMMITMENTS IN SECTION 3, THE SERVICES, SOFTWARE, AND HARDWARE ARE PROVIDED "AS IS" AND "AS AVAILABLE." REOTEMP DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

7.2. Limitation of Liability: TO THE MAXIMUM EXTENT PERMITTED BY LAW, REOTEMP INSTRUMENTS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE USE OR INABILITY TO USE THE SYSTEM (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR DAMAGE TO GOODS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF REOTEMP INSTRUMENTS FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF SUBSCRIPTION FEES PAID BY SUBSCRIBER TO REOTEMP IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

7.3. Subscriber Indemnification: Subscriber agrees to indemnify, defend, and hold harmless Reotemp and its officers, directors, and employees from and against any and all third-party claims, liabilities, damages, and costs (including reasonable attorneys' fees) arising out of or related to: (a) Subscriber's breach of this Agreement; (b) Subscriber's gross negligence or willful misconduct; or (c) any use of the Services in violation of the restrictions in Section 4.2.

8. General Provisions

8.1. Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law principles.

8.2. Dispute Resolution and Binding Arbitration

8.2.1. Good Faith Negotiation: In the event of any dispute, claim, or controversy arising from or relating to this Agreement, the parties shall first attempt to resolve the dispute by good faith negotiation between executives with the authority to settle the matter.

8.2.2. Binding Arbitration: If the dispute is not resolved within thirty (30) days, then upon written notice by either party to the other, the dispute shall be finally settled by binding arbitration administered by the American Arbitration Association (AAA) in accordance with its Commercial Arbitration Rules. The arbitration shall be conducted in San Diego County, California, by a single arbitrator with at least ten (10) years of experience in technology and commercial contracts.

8.2.3. Finality: The arbitrator's decision shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

8.2.4. Fees: The arbitrator's fees shall be borne equally by the parties, and each party shall bear its own attorneys' fees and costs, provided that the arbitrator shall have the authority to award attorneys' fees to the prevailing party.

8.3. Force Majeure: Neither party shall be liable for any failure or delay in performance due to causes beyond its reasonable control, including but not limited to acts of God, war, terrorism, riot, labor strikes, or natural disasters.

8.4. Entire Agreement: This Agreement, together with any order forms, constitutes the entire agreement between the parties and supersedes all prior proposals, negotiations, and agreements, whether oral or written.

8.5. Severability: If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect.

8.6. Notices: All "written notices" required by this Agreement must be sent via email to a designated contact address or by certified mail, return receipt requested.