TenTracked – VAR – Terms of service

1. Definitions

Agreement: The entire agreement concluded between the Customer and TenTracked, related to the Solution, which contains the Purchase Order Form and these Terms;

Asset: Any asset of the Customer to which Hardware is attached;

Application Plan: Specific Customer Access to the Sensolus Platform and its related features, currently defined as Essential; Professional and Analytics;

Business Day: Any day, other than Saturday, Sunday or legal holidays in the Netherlands and/or Belgium;

Hardware: all hardware purchased by the Customer from TenTracked (i.e. trackers, beacons, sensors, batteries, etc.), which can (amongst others) be attached to Assets or infrastructure/location chosen by the Customer and transfer data to the Platform;

Network: the communication network used to transfer the data from the Hardware to the Platform;

Purchase Order Form: The order form the Customer needs to complete in order to purchase Hardware and/or Subscriptions;

Platform: The Sensolus platform, as can be accessed by the Customer, and the services related thereto (e.g. hosting, maintenance, bug fixing )

Sensolus: The developer of the Solution sold by TenTracked;

Services: All other industrial IoT related services offered by TenTracked (e.g. trainings, installation, data analysis, custom development, etc.); Solution: The end-to-end solution provided by TenTracked consisting of (a combination of) Hardware, Subscriptions, access to the Platform and/or Services;

Subscription: An access subscription to an Application Plan (i.e. Essential, Professional or Analytics) for each active tracker, as described on the Platform;

Term: The initial or renewed term of the Subscription and – if applicable – the recurrent Services related thereto (e.g. additional service levels);

Terms: these Customer Terms, the Acceptable Use Policy and the Data Processing Terms2. Applicability of the Terms

2. Applicability of the Terms

2.1. Unless explicitly agreed otherwise in writing, the offering, sale and delivery of all Hardware, Subscriptions and/or Services by TenTracked shall be governed by the present Terms.

2.2. By relying on the Solution, the Customer agrees to be bound by these Terms. The Terms shall always take precedence over any terms and conditions of the Customer, which shall not be enforceable against TenTracked.

2.3. All transactions between TenTracked and the Customer are governed by (in descending hierarchical order, with the next applying in the absence or non-application of the previous): (i) the Purchase Order Form, (ii) the Terms, and; (iii) Dutch law.

3. Order

3.1. The Customer shall be responsible for the accuracy of any submitted order. The Customer shall also be responsible to give TenTracked any and all necessary information relating to the requested Hardware, Subscriptions and/or Services without undue delay.

4. Cancellation

4.1. In the event of the cancellation of the Agreement by the Customer (without this being due to a shortcoming of TenTracked), TenTracked

reserves the right to charge the Hardware, Subscriptions and Services already provided (incl. incurred costs).

5. The Solution

5.1. TenTracked provides the Solution with due diligence, with appropriate care and in good faith, and shall deliver the Solution to the best of its understanding, skill, insight and ability, as reasonably expected of a professional experienced in services of comparable scope, complexity and size.

5.2. TenTracked will provide to the Customer access to uptime SLA reporting via the Platform.

5.3. Upon agreement between the Parties, TenTracked can provide the Customer with a guaranteed SLA. A guaranteed SLA contains specific penalties to be paid by TenTracked if the obligations of the SLA are not met.

6. The Hardware

6.1. Delivery

6.1.1. TenTracked delivers the Hardware to the Customer as described in the Agreement. The expected time of delivery is binding upon acceptance of the order.

6.1.2. All Hardware that is to be delivered within the European Union, is sold Delivery Duty Paid (DDP) (Incoterms 2020 rules). Delivery will take place at a delivery address designated by Customer. The shipping costs will be charged to the Customer at the moment of the order.

6.1.3. For shipments outside of the European Union, hardware is sold and delivered Ex Works (EXW) (Incoterms 2020 rules) at the warehouse of Sensolus. Customer is responsible for the transport, including cost of carriage, containers, storage costs, insurance and any and all costs caused by extended storage. If TenTracked organizes transport upon request of the Customer, Customer shall reimburse TenTracked for all costs made.

6.2. Retention of title

6.2.1. TenTracked retains the ownership of Hardware delivered to the Customer until the Customer has paid the price, costs, interests and all other accessories related to purchase thereof in full.

6.3. Defects

6.3.1. The Customer must verify (i) the conformity of the Hardware with the Agreement, and (ii) the proper functioning of the Hardware, upon delivery. If the Hardware has a visible/material defect (e.g. visible damage to the Hardware or packaging), Customer must immediately (and no later than seven (7) Business Days after the delivery) notify TenTracked thereof – at the risk of forfeiture – by email, to the email address support@tentracked.com.

6.3.2. The Customer must inform TenTracked of any improper functioning of Hardware or other hidden defect by email to the address no later than fourteen (14) Business Days after it has/should have been detected, at the risk of forfeiture, and in any case within twelve (12) months upon installation of the Hardware, by email, to the address: support@tentracked.com.

6.3.3. Physical return of the defective Hardware does require prior approval by TenTracked, where TenTracked shall send the defective hardware to be checked and examined by the Hardware manufacturer (remote and/or physical), which shall investigate the complaint within fifteen (15) Business Days.

6.3.4. The cost of such examinations shall be payable by Customer only to the extent the claim of the defect is found to be non-related to Hardware manufacturer and thus Hardware manufacturer, nor TenTracked cannot be held liable for. TenTracked does not warrant defects caused by:

• Normal wear and tear;
• Incorrect/improper installation (not according to the installation manual provided);
• Incorrect use treatment or maintenance (not according to the installation manual provided);
• Incorrect usage by Customer;
• Force majeure and/or hardship (as described in Article 16 below);
• Battery life incoherent with specifications due to the adjustment of the settings by the Customer or a third party;
• Customer or a third party has opened, repaired, altered or modified the Hardware;
• Serial numbers or other unique identifiers on Hardware that were removed

6.3.5. TenTracked warrants that the provided Hardware (i) complies with the provided detailed specifications, including the certifications of water and dust ingress (IPXX) and shocks (IKXX), which are based on publicly available ratings, (ii) the Hardware will be free from defects in materials, design and workmanship, (iii) the battery is included in the warranty with a battery life expectancy for three (3) years under default settings, being four (4) messages/updates per day (if not otherwise specified in the specifications), (iv) complies with radio performance as stated in lab test reports and certifications. TenTracked does not guarantee the fitness of the Hardware for any particular purpose, beyond the provided certifications. If Customer needs Hardware for particular purposes, or if the Hardware should meet certain functional or legal requirements, Customer is required to ask TenTracked to provide precise information prior to submitting its order.

6.3.6. In case the existence of a defect covered by the warranty, TenTracked shall, at TenTracked’s sole discretion, provide one of the following remedies:

• Replacement of the defective Hardware within fourteen (14) Business Days;
• Reimbursement of the sale price

All other remedies (including damages) are excluded.

7. The Subscription

7.1. Customer purchases a Subscription for each tracker in accordance with the Application Plan, as described in the Purchase Order Form, subject to (i) correct and timely payment of the applicable fees, (ii) use in correspondence with the applicable usage limits, and (iii) use in compliance with the Agreement.

7.2. The Subscription can include the use of the Network, if specified in the Purchase Order Form. The Customer is obligated to verify, prior to concluding an Agreement, whether the Network coverage is available in the countries where it intends to use the Solution. A regularly updated overview is available on the Platform. As the Network is not under the control of TenTracked, it can never be responsible for any coverage issues or downtime in this regard. Nonetheless, TenTracked strives to inform the Customer on the aforementioned characteristics of the Network before the Agreement is concluded.

8. The Platform

8.1. The Customer is entitled to access and use the Platform in accordance with the applicable Application Plan (cfr. Article 7.1), the Acceptable Use Policy and the Data Processing Terms.

8.2. The Platform is provided to the Customer “AS-IS”. In the event of problems with the availability of the Platform, TenTracked undertakes its best effort to solve such issue as soon as reasonably possible without giving any guarantee.

8.3. TenTracked (via Sensolus) performs maintenance activities and implements updates of the Platform on a regular basis. TenTracked and Sensolus strive to minimize the impact on the availability of the Platform.

9. The Services

9.1. TenTracked provides different additional Services to the Customer upon request, such as but not limited to training, installation of the Hardware, data analysis, etc. The specific scope, content, deadlines, etc. related to these Services will be agreed upon by the Parties in the Purchase Order Form.

10. Complaint

10.1. Any complaints concerning the Solution shall only be admissible if submitted to TenTracked in writing within a period of five (5) Business Days following the discovery of the problem by the Customer. Complaints shall always be submitted to TenTracked by email to the address support@tentracked.com, containing a detailed justification of the complaint.

11. Prices

11.1. Prices are as stated in the Purchase Order Form. Prices confirmed by TenTracked for one order are not binding for subsequent orders.

11.2. The prices exclude transport costs, loading or unloading costs, insurance costs, packaging costs, VAT, levies, import and export duties, etc. (if applicable).

11.3. TenTracked is entitled to index the Subscription fee on January 1.

12. Payment

12.1. TenTracked’s invoices are payable to TenTracked’s designated bank account at the latest on the due date indicated on the Purchase Order Form or in the relevant invoices. The invoice has been settled when the complete amount has been received on TenTracked’s designated bank account. All fees are due at the commencement of the Term.

12.2. Invoices that are not disputed by registered letter and/or via email to support@tentracked.com within twenty (20) Business Days after their issuing will be considered to have been fully accepted.

12.3. Unless expressly agreed otherwise, the Customer pays the invoices within thirty (30) days, starting from the day following the Customer received its invoice.

12.4. If the Customer fails to pay in full any invoice by the due date, then (without previous notice of default) the Customer shall pay interest on the overdue amount at the applicable legal interest rate by Dutch law at the moment of late payment

12.5. If undisputed payments are overdue for more than sixty (60) days and, provided that TenTracked has given a written reminder indicating its intention to suspend and/or postpone its obligations, TenTracked is entitled to suspend or postpone its obligations in connection to any active Agreement between the Parties.

12.6. By ordering the Hardware, the Subscriptions and/or Services, the Customer agrees to electronic invoicing by TenTracked.

13. Term

13.1. The Subscription is activated (and the Term starts) on the date the Hardware is invoiced, unless otherwise agreed upon.

13.2. The Term shall automatically be renewed for one year, unless either party gives notice of termination to the other party at the latest one month before the end of the Term. The Customer can give notice by sending an email to support@tentracked.com. Failure to do so will obligate the Customer to pay the invoices related to the renewed Term.

13.3. TenTracked cannot terminate the Subscription (without cause) during a typical lifetime of the tracker (i.e. up to 5 years from initial order). In case the Subscription is no longer provided, TenTracked needs to provide the means (including the list of individual security keys and a documented data model) for the Customer to be able to continue access the raw data on the communication backend.

14. Termination

14.1. Either Party may terminate the Agreement per registered mail for material breach, automatically and without definitive court decision if the other Party has committed a material breach and fails to remedy such breach within fifteen (15) days of written notice of default by the claiming party.

14.2. The Agreement may be terminated if an insolvency event occurs, i.e. a Party ceases to pay its debts or ceases its activities, files for bankruptcy, liquidation of the legal entity or enters proceedings in receivership or judicial composition proceedings.

14.3. TenTracked shall never be obligated to refund the Customer any fees if the Customer terminates the Agreement during the Term (without the termination being the result of a material breach of TenTracked ).

14.4. Articles 15, 17 and 18 of the Terms shall survive the termination of the Agreement and continue in full force and effect.

15. Liability

15.1. TenTracked’s liability is limited to the mandatory liability imposed by law, and to:

• For the Hardware: the invoice value of the Hardware. TenTracked shall decide (at its sole discretion) to either (i) replace or repair the Hardware, or (ii) credit a pro rata part of the invoice amount of the Hardware. The maximum liability for hardware is limited to € 50.000,00
• For the Subscriptions: the invoice value of the Subscriptions provided by TenTracked to the Customer as part of the Agreement during the twelve (12) month period preceding the date on which the applicable liability claim arose. The maximum liability for subscriptions is limited to € 50.000,00
• For the Services: the applicable amount listed in the Purchase Order Form. The maximum liability for services is limited to € 50.000,00

15.2. TenTracked cannot accept any claim from the Customer for indemnification for:

• Damage to, loss or theft of the Assets to which Hardware is attached;
• Damage resulting from the defaults in devices or infrastructure belonging to the Customer;
• Availability or performance of the Network. Network quality and availability are affected by elements out of TenTracked’s control, such as atmospheric conditions, physical constraints, radio interference, etc.;
• Defects that are caused directly or indirectly by an act of the Customer or a third party, regardless of whether they were caused by a fault, negligence or carelessness (e.g. improper installation);
• Damage caused by incorrect, unreliable, incomplete or late input from the Customer with regard to the data, objectives, specifications, features, applications, etc.;
• Damage caused by the further use or application by the Customer after detection of a problem;
• Damage caused by force majeure or hardship in accordance with the provisions of Article 16 of these Terms.
• Incidental, special, consequential, exemplary or punitive damages, such as but not limited to loss of income, business, profits, revenue or anticipated savings or loss of goodwill.

15.3. Customer alone assumes the responsibility for the use made of the Solution by its employees, or any other third party that has access to the Platform in the Customer’s name, including but not limited to the proper and legal use of Hardware and the Platform, the use of information generated by the Hardware and the analysis generated by the Solution in general.

15.4. Customer will hold TenTracked harmless against all claims from third parties arising from the incorrect or unlawful use of the Solution. It will cover all damages such as compensations or legal costs (including reasonable lawyer’s fees) providing that TenTracked has informed the Customer immediately of any claim arising from that matter.

16. Force majeure & Hardship

16.1. The following are conventionally considered as cases of force majeure or hardship: all circumstances which were reasonably unforeseeable at the time the Agreement was concluded, are unavoidable, and create (i) the inability on the part of TenTracked to carry out the Agreement, or (ii) make the implementation of the Agreement harder or more difficult than normally anticipated. For example (but not limited to): natural disasters, war, (threats of) terrorism, strikes, lock-out, diseases, epidemics/pandemics, shortage of personnel, organizational conditions, confiscation, fire, breakage of machinery and/or tools, scarcity of (raw) materials, bankruptcy or delays on the part of suppliers or subcontractors and failure by the Customer to provide TenTracked with the correct and complete information necessary to properly provide the Solution.

16.2. Cases of force majeure or hardship give TenTracked the right to temporarily suspend the performance of its obligations. A situation of force majeure that continues beyond three (3) months shall entitle TenTracked to terminate the Agreement with immediate effect by simple written notification to TenTracked, without judicial intervention and without any liability on the part of TenTracked.

16.3. The Customer shall always be required to pay all fees for the Hardware, the Subscriptions and the Services that have already been performed resp. provided on the date of suspension/termination.

17. Confidentiality

17.1. All information (including but not limited to all information of financial, commercial, legal, fiscal, social, technical and organizational nature, business and trade secrets, business partner, Customer and supplier data, employee data, personal data, programs, source codes, computer programs, computer code, modules, scripts, algorithms, features and modes of operation, inventions (whether or not patentable), processes, schematics, testing procedures, software design and architecture, design and function specifications) disclosed by one Party to the other Party prior to entering into an Agreement as well as during the Agreement shall be considered confidential and be treated with the utmost secrecy.

17.2. This confidentiality obligation applies during the course of the cooperation and will continue to exist for a period of two (2) years starting from the termination of the cooperation for any reason whatsoever.

17.3. Both Parties shall remain at any moment the sole owner of their confidential information. Except as expressly set forth herein, nothing in these Terms or the relationship between Parties shall grant to the other Party any rights to or interest in the confidential information, and no implied licenses are granted.

17.4. This confidentiality obligation shall, however, in no event imply that TenTracked shall not be entitled to use and/or commercialize any ideas, input, feedback received from the Customer, which may serve to improve and/or expand the Solution.

18. Intellectual property rights

18.1. All registrations of the trade names/trademarks that include the name of TenTracked, or under which name the Solution is sold to the Customer, shall be made and owned by Sensolus or TenTracked. The Customer shall not use Sensolus’ or TenTracked’s name or the Solution sold by TenTracked as a part of the Customer’s name or in any manner capable of misrepresenting the relationship between Sensolus, TenTracked and Customer.

18.2. By uploading, providing or otherwise using data on, through or in connection with the Solution, the Customer grants Sensolus and TenTracked a non-exclusive, royalty-free, worldwide, sub-licensable, transferable, license to use, copy, store, modify, transmit and display the data to the extent necessary to provide the Solution.

18.3. All registrations of the trade names/trademark Sensolus, or any other trade name/trademark that includes the name Sensolus, or under which the Solution is sold by TenTracked, shall be made in the name of Sensolus. The Customer shall not use Sensolus’ company name, TenTracked’s company name, Sensolus’ Solution names or TenTracked’s trademarks as part of Customer’s name or in any manner capable of misrepresenting the relationship between the Customer, TenTracked and Sensolus. The Customer shall not alter, remove or tamper with the brands, trademarks, or other means of identification on the Solution.

18.4. The Customer explicitly acknowledges that Sensolus shall own and retain all (intellectual) property rights with respect to the Solution (including all copies, modifications, extensions and derivative works thereof), such as but not limited to authorship rights, patents, design rights, know how, ideas, concepts, methods, processes, technologies, know-how, inventions, domain names and database rights (excl. the data owned and uploaded by the Customer) or any other form of intangible thought process. In case of breach of the obligations, Sensolus is entitled to claim full compensation for all damage caused by the breach.

19. Privacy

19.1. TenTracked as controller

19.1.1. The collection by TenTracked of Personal Data of the Customer and/or its personnel/staff shall take place in accordance with the provisions of TenTracked’s privacy declaration, to be found on the Website. In such event, TenTracked acts as controller. By relying on the Solution and entering into an Agreement with TenTracked, the Customer acknowledges to have read and accepted the privacy declaration.

19.2. TenTracked as processor

19.2.1. The Customer acknowledges that – with regard to the processing of all data collected via and/or processed through the Solution by the Customer – it shall act as controller and TenTracked as (sub-)processor. All arrangements made between parties in this respect shall be solely governed by the Sensolus Data Processing Terms (available on the Platform). The Customer acknowledges explicitly that by relying on the Solution and entering into an Agreement with TenTracked to have read and accepted the Data Processing Terms in its entirety.

20. Changes to the Terms or the Solution

20.1. TenTracked reserves the right to amend the fees and composition of its Solution at any time, as long as the adaptations are reasonable and are being communicated at least thirty (30) days before effective change.

20.2. Subject to notice of at least thirty (30) days, TenTracked shall be entitled, except in a case of force majeure, government order or amended legislation, to discontinue the sale of Hardware or to make changes to the type, design or model thereof, as long as they remain compatible with the existing Solution. In such cases, TenTracked shall not be obligated to make such changes to Hardware already held or ordered by the Customer. The Customer cannot hold TenTracked liable for any changes within the meaning of this article and shall not have any recourse against TenTracked for its discontinuation of the supply of Hardware previously sold by TenTracked.

20.3. In the event the Customer cannot agree with a change in the offer of the Terms or the Solution (as described in Article 20.1) and the change entails a significant disadvantage for the Customer during the Term or the tacitly renewed Term, it is allowed to terminate the Agreement within thirty (30) calendar days after being notified thereof by TenTracked. Under no circumstances, this entitles the Customer to claim any sort of damages or compensation from TenTracked.

21. Netting

21.1. TenTracked and the Customer will automatically and legally compensate and offset each other for all current and future debts.

22. Miscellaneous

22.1. No waiver: Any failure or delay by TenTracked or Customer in exercising any right under an Agreement and/or these Terms, any single or partial exercise of any right under such Agreement and/or these Terms or any partial reaction or absence of reaction by TenTracked or Customer in the event of violation of one or more provisions of such an Agreement and/or these Terms, shall not operate or be interpreted as a waiver (either express or implied, in whole or in part) of TenTracked and Customer rights under such Agreement these Terms or under said provision(s), nor shall it preclude any further exercise of any such rights. Any waiver of a right must be express and in writing. If there has been an express written waiver of a right following a specific failure, this waiver cannot be invoked in favor of a new failure, similar to the prior one, or in favor of any other kind of failure.

22.2. Divisibility

22.2.1. If any part or any clause of these Terms is for whatever reason held to be illegal, invalid or unenforceable, such provisions shall be deleted and the remaining parts or clauses shall not be affected and shall remain valid and enforceable as if the invalid or unenforceable parts or clauses were not part of the Terms.

22.2.2. Any such part or clause shall be replaced by a provision that, insofar as legally possible, comes closest to the intention of parties in the affected part or clause. Parties shall in good faith negotiate and agree a mutually acceptable provision that shall replace the deleted provision.

22.3. Non-transfer

22.3.3. This Agreement and the rights and obligations ensuing from it for the Customer may not be transferred either directly or indirectly without the written consent of TenTracked.

22.3.4. TenTracked shall have the right to transfer this Agreement and the rights and obligations ensuing from it to a third party. In that case

a new agreement between Customer and the third party shall be concluded with terms and conditions (rights and obligations) identical to those in this Agreement for the remaining Term.

23. Jurisdiction and applicable law

23.1. The Parties hereby undertake to apply the Netherlands Arbitration Institute (NAI) to all disputes arising out of or in connection with this Agreement. Should the mediation fail, any disputes arising out of or in relation with this Agreement shall be finally settled under the Netherlands Arbitration Institute by one or more arbitrators appointed in accordance with those Rules. The seat of the arbitration shall be the closest seat to the registered office of TenTracked. The arbitration shall be conducted in the English language.

23.2. The present Terms as well as any Agreement between Parties, of whatever nature, are governed by and construed in accordance with the laws of the Netherlands, with exclusion of (i) all conflict of laws rules, (ii) the UN Convention on the International Sale of Goods (1980), and (iii) the NY Convention on the Limitation Period in the International Sale of Goods (1974).

23.3. Without prejudice to any other provision of these Terms, any claims by the Customer arising out of or in connection with an Agreement between parties or any purchase order will in any event become time-barred after expiration of one (1) year as from the date of delivery of the relevant Hardware, Subscription and/or Services.