General Terms and Conditions

Date of Last Revision: February 7, 2022

SCOPE

These general terms and conditions of license and sale contained herein will apply to all purchase orders (“Order”) accepted by Cargo Spectre LLC (“Cargo Spectre”) from Customer for the products and services (“Products”) stated in the Order. These general terms and conditions together with the Order and any applicable statement(s) of work and other exhibits thereto are collectively referred to herein as the “Agreement”. All Orders for Cargo Spectre Products will be governed by the terms and conditions of this Agreement, and none of the terms or conditions of Customer’s purchase order, acknowledgements or any other communication between the parties will be applicable.

Cargo Spectre reserves the right, in its sole discretion, to modify, add to, or remove portions of this Agreement (“Changes”) at any time. Any such Changes made during Customer’s Subscription Term (defined below) will become effective upon the first to occur of: (i) renewal of Customer’s Subscription Term, or (ii) 30 days following Cargo Spectre’s notice describing the Changes; provided, however, that any Urgent Changes will be effective immediately upon notice to Customer. An “Urgent Changes” means a change that (A) addresses new functionality, (B) is required by a third party provider of Cargo Spectre, for example, with regard to infrastructure or functionality, or (C) in the reasonable opinion of Cargo Spectre’s counsel, is required to comply with applicable law. Such notice may be provided by sending an email to the address identified in Customer’s account or by posting a revised version of the Agreement incorporating the Changes to the Cargo Spectre website. Customer’s continued use of the Products covered by the Subscription Term following the effective date of the Changes means that Customer accepts and agrees to the Changes. If, in Customer’s sole opinion, the Changes materially and adversely affect Customer (“Adverse Changes”), then Customer may notify Cargo Spectre in writing within 30 days following Cargo Spectre’s notice to Customer describing the Changes with a reasonable explanation of the effect of such Adverse Changes on Customer, and upon receipt of such notice Cargo Spectre may elect to: (1) waive the Changes for Customer for a specific time period, or (2) provide Customer with an additional 30-day period for Customer to elect in writing whether to accept the Adverse Changes despite the adversity or terminate Customer’s Subscription Term. If Customer elects to terminate Customer’s Subscription Term, then Customer will give Cargo Spectre written notice of termination on such grounds within the additional 30-day period, and Cargo Spectre will not enforce the Changes with respect to Customer until the end of the additional 30-day period. If Cargo Spectre receives such termination notice from Customer within the additional 30-day period, then Cargo Spectre will provide a pro-rata refund of any prepaid unused Subscription Term fees paid by Customer before such termination.

FEES; TERMS OF PAYMENT

Customer will pay to Cargo Spectre the fees stated in the Order. Unless otherwise stated in the Order, all amounts due to Cargo Spectre are due net 30 after receipt of Cargo Spectre’s invoice.

Customer will pay, and all prices are exclusive of, sales, use, value added, excise, withholding or any other taxes applicable to the sale, use, license or delivery of the Products, excluding any taxes based solely on the net income of Cargo Spectre. If Customer is required under any applicable law or regulation, domestic or foreign, to withhold or deduct any portion of the payments due to Cargo Spectre, then the sum payable to Cargo Spectre will be increased by the amount necessary so that Cargo Spectre receives an amount equal to the sum it would have received had Customer made no withholdings or deductions.

All sales and provision of Products are FOB origin; transportation, insurance, customs, duties and any other charges are not included in the Product prices and will be paid by Customer.

Cargo Spectre may charge the lesser of 1.5% per month or the maximum lawful rate on overdue amounts. If Cargo Spectre is required to bring legal action to collect delinquent accounts, then Customer will pay reasonable attorneys’ fees and costs of collection and any related legal action.

DELIVERY AND HARDWARE TITLE

The time for delivery will be established by the parties after Cargo Spectre accepts the Order. Unless otherwise stated in the Order, Customer may not delay or cancel any Order or delivery.

Customer assumes title and the risk of loss or damage to hardware Products if Customer elects to purchase the hardware Products from Cargo Spectre hereunder (“Purchased Hardware”) upon delivery FOB origin.

If Customer has elected to include and use the hardware Products as part of the Subscription (instead of purchasing the hardware Products) (referred to herein as the “Subscription Hardware”), then such Subscription Hardware will be included in the Subscription and subject to the following terms.

Subject to the terms and conditions of this Agreement, Cargo Spectre grants to Customer a non-exclusive, limited, personal, non-sublicensable, and non-transferable right only to: (i) use the Subscription Hardware with the licensed Software as part of the Subscription during the Subscription Term specified in the Order and in accordance with any other use restrictions stated in the Order or documentation; and (ii) solely for Customer’s internal business purposes.

The Subscription Hardware is, and will at all times be and remain, the sole and exclusive property of Cargo Spectre and Customer will have no right, title or interest therein or thereto except as expressly set forth in this Agreement.

Customer will use the Subscription Hardware in a careful and proper manner. The Subscription Hardware will be located at the address specified in the Order, and Customer will not move the Subscription Hardware from such location without the prior written consent of Cargo Spectre, which consent will not be unreasonably withheld. Customer will not change or remove any labels or placards on the Subscription Hardware at the time of delivery or which are thereafter applied indicating Cargo Spectre's ownership; at any time during the Subscription Term, upon request of Cargo Spectre, Customer will affix to the Subscription Hardware, in a prominent place, labels or placards supplied by Cargo Spectre indicating that the Subscription Hardware is owned by Cargo Spectre. Customer assumes and will bear the entire risk of loss and damage to the Subscription Hardware upon delivery, except as stated in Section 8 below (Hardware Warranty and Support). No loss or damage to the Subscription Hardware or any part thereof will impair any obligation of Customer under this Agreement which will continue in full force and effect through the Subscription Term. Customer, at its own expense, will keep the Subscription Hardware insured at the full replacement value thereof against fire, theft and other damage. Customer will keep the Subscription Hardware free and clear of all levies, liens and encumbrances.

Purchased Hardware and Subscription Hardware shall be collectively referred to herein as “Hardware”.

Cargo Spectre will pass through to Customer the manufacturer’s end user licenses associated with the Hardware.

LIMITED WARRANTY; DISCLAIMER

If Customer has engaged Cargo Spectre to install the Hardware at Customer’s facility, then Cargo Spectre will perform the installation services in a competent and professional manner consistent with generally accepted industry standards. Customer’s exclusive remedy for breach of this representation will be Cargo Spectre’s reasonable commercial efforts, at no additional charge, to remedy such services performed in a manner that is substantially less than professional and workmanlike. Customer must report any deficiencies in the installation services to Cargo Spectre within 15 days of the completion of the installation services in order to receive such remedy. Cargo Spectre reserves the right to engage subcontractors to perform its obligations under this Agreement including installation services.

Unless otherwise expressly stated in these general terms and conditions or in the Order, all Products are sold, licensed and otherwise provided “AS IS” without warranty and CARGO SPECTRE DISCLAIMS ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

Customer assumes all responsibility and liability for its use of the Products and will indemnify and hold harmless Cargo Spectre from damages, liabilities, settlements, costs and legal fees incurred by Cargo Spectre arising out of Customer’s use of the Products.

No written or oral statement made about any Product by an employee or agent of Cargo Spectre will be effective to provide or extend a warranty for the Products.

LIMITATION OF LIABILITY

NEITHER CARGO SPECTRE NOR ITS SUPPLIERS WILL BE LIABLE TO CUSTOMER WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT CARGO SPECTRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR: (A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, OR (B) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, OR (C) ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE FEES PAID TO CARGO SPECTRE DURING THE SUBSCRIPTION TERM FOR THE PRODUCTS FROM WHICH THE CLAIM OR CAUSE OF ACTION AROSE.

PROPRIETARY RIGHTS; MAINTENANCE AND SOFTWARE SUPPORT

Cargo Spectre and its licensors retain all right, title and interest including intellectual property rights, in and to the software Products (“Software”) and documentation including all images, photographs, animations, video, audio, music, text, data, computer, code, algorithms, and information provided or made available by Cargo Spectre to Customer. Cargo Spectre will also own any and all Aggregate Data produced from Customer’s use of the Products. For the purposes of this Agreement, “Aggregate Data” means any and all data, including Freight Scans (defined below) uploaded to Cargo Spectre’s site, produced from Customer’s use of the Products or provisioning of the Products for broad groups or categories in which the characteristics of individual persons or customers are no longer identifiable, including but not limited to metadata.

Customer understands and agrees that Cargo Spectre is constantly improving its Products, Software and related services for the benefit of all Cargo Spectre's customers including Customer and in order to do so Cargo Spectre desires that Customer uploads data saved on the Product about the output of each single freight dimensioning operation by the Product (including the 3D data of the freight, the dimensions, any calibration data that was used for that dimensioning, etc.) (“Freight Scans”). If Customer opts-in and authorizes Customer’s Freight Scans to be uploaded to Cargo Spectre’s site, then Customer grants Cargo Spectre the perpetual non-exclusive right and license to use such Freight Scans for purposes of undertaking internal research and development, and assessing and improving the Product, Software and related services. Customer understands and acknowledges that even if Customer does not opt-in to such Freight Scan uploads, any single error reported to Cargo Spectre will be uploaded and subject to the foregoing license and Cargo Spectre’s ownership of the Aggregate Data. For clarification, except for Aggregate Data, Customer will own Customer’s Freight Scans.

For a period of five years following initial disclosure of any confidential information (“Confidential Information”) by a party (“Disclosing Party”), the other party (“Receiving Party”) will (i) hold the Disclosing Party’s Confidential Information in confidence; (ii) not disclose the Disclosing Party’s Confidential Information to third parties; and (iii) not use any of the Disclosing Party’s Confidential Information for any purpose except to perform this Agreement. The Receiving Party will treat the Disclosing Party’s Confidential Information with at least the same degree of care that it uses to protect its own confidential and proprietary information, but with no less than a reasonable degree of care under the circumstances. Because damages alone may not be adequate compensation for loss of Confidential Information, the Disclosing Party, in addition to any other legal and equitable rights it may have, will be entitled to an injunction against the breach or threatened breach of this Section by the Receiving Party.

Cargo Spectre will provide Software maintenance and support services to Customer at no additional charge in accordance with Cargo Spectre’s then-current standard Software maintenance and support terms and conditions. Such maintenance and support will include Software updates and upgrades which Cargo Spectre makes generally available to all its customers at no additional charge. Cargo Spectre reserves the right to charge for new features or functions that are separately licensed and priced from the Software containing the original functionality. For on-site support requested by Customer, Customer will (i) pay Cargo Spectre’s standard rates and fees; (ii) pay Cargo Spectre for any additional costs incurred by Cargo Spectre if Customer’s site is not ready for installation as stated in the installation requirements when the Cargo Spectre technician arrives on Customer’s site; and (iii) reimburse Cargo Spectre for all reasonable travel-related expenses.

SOFTWARE LICENSE GRANT

Subject to the terms and conditions of this Agreement, Cargo Spectre grants to Customer, under Cargo Spectre’s intellectual property rights, a non-exclusive, limited, personal, non-sublicensable, and non-transferable license only to: (i) use the Software on the Hardware on which it was pre-installed when delivered to Customer, or install standalone Software (not pre-loaded on Hardware before delivery) on Hardware or designated equipment, as applicable, for which it was intended, as stated in the Order or documentation; (ii) use one copy of the Software for each license fee paid as specified in the Order; (iii) use the Software during the Subscription Term specified in the Order and in accordance with any other use restrictions stated in the Order or documentation (including copy or user limits); and (iv) solely for Customer’s internal business purposes (collectively, the “Subscription”). For clarification, the Software license is limited to one instance of the Software installed on one Hardware device (i.e. computer).

Customer may make one copy of the Software and documentation for back-up purposes, provided that any such copy includes Cargo Spectre’s copyright and other proprietary notices.

The license granted herein is granted solely to Customer, and not to any affiliate of Customer. The license granted herein does not authorize Customer (nor may Customer allow any third party) to: (i) copy (except for one Customer back-up copy), distribute, use or allow third party access to the Software, except Customer’s agents and representatives for whom Customer is responsible; (ii) decompile, disassemble, reverse engineer, translate, convert or apply any procedure or process to the Software in order to ascertain, derive, and/or appropriate for any reason, the source code or source listings for the Software or any trade secret information contained in the Software (except to the extent that such acts may not lawfully be prohibited and in such event, if required under applicable law, upon Customer’s request, Cargo Spectre will provide information necessary for Customer to achieve interoperability between the Software and other software for a nominal administrative charge); (iii) modify, incorporate into or with other software, or create a derivative work of any part of the Software; provided that Customer may integrate the Software with Customer’s own software; (iv) separate and use any components of the Software on more than one Hardware device; (v) lease or lend the Software; (vi) disclose the results of any benchmarking of the Software, or use such results for its own competing software development activities, without the prior written consent of Cargo Spectre; (vii) attempt to circumvent any usage limits or other license, timing or use restrictions that are built into the Software; or (viii) remove, obscure, alter or obliterate any product identification, logo, copyright, trademark, proprietary or other notices that appear on the Software. It is further expressly understood and agreed that Customer’s business operations will not include, without Cargo Spectre’s express written consent, any use of the Software for the purpose of any transaction: (A) undertaken for a fee or other consideration, (B) performed substantially for the benefit of any third party, or (C) which is not reasonably related to Customer’s business operations.

The Software may include open source software (“OSS”). The license terms associated with OSS require that Cargo Spectre provide copyright and license information to Customer. A list of the OSS included in the Software and applicable license terms are available at Cargo Spectre’s website or in Cargo Spectre’s Software documentation.

Customer’s rights in the Software are limited to those expressly granted in this Section 7. Cargo Spectre reserves all rights and licenses not expressly granted to Customer under this Section 7.

HARDWARE WARRANTY; SUPPORT

For Subscription Hardware, Cargo Spectre will provide, at no additional charge, the same terms and conditions of the manufacturer’s warranty during the entire applicable Subscription Term (including any renewals).

For Purchased Hardware, the terms and conditions of the manufacturer’s warranty will apply, except that so long as the applicable Subscription Term is in effect Cargo Spectre will at no additional charge (i) extend such warranty period to a total of five years, and (ii) provide support for such warranted Purchased Hardware as described in Section 8.c.

If Hardware located in the U.S. requires replacement, then Cargo Spectre will, at its expense, ship overnight a replacement device to Customer on the same day that Customer notifies Cargo Spectre of a Hardware failure, provided that a mutually agreed support ticket for same is created by 12 p.m. Central Time, Monday – Friday, excluding Cargo Spectre holidays; otherwise the replacement Hardware will be shipped with overnight shipping on the next day after the support ticket is mutually agreed and created. Customer is responsible for paying for return of the defective Hardware, which must be received by Cargo Spectre within 30 days of the creation of the mutually agreed support ticket or Cargo Spectre will invoice, and Customer will pay, the replacement cost of the Hardware. Customer will be responsible for installing the replacement Hardware at Cargo Spectre’s direction (provided remotely). If Customer desires Cargo Spectre to install the replacement Hardware, then Customer will (i) pay Cargo Spectre’s standard labor rates and fees; and (ii) reimburse Cargo Spectre for all reasonable travel-related expenses. If the Hardware is located outside of the U.S., then Cargo Spectre will ship replacement Hardware to Customer at Customer’s direction and expense. The foregoing support provisions will not apply to any Purchased Hardware whose extended warranty (as provided in Section 8.b.) has expired.

Support for Hardware will not apply if the Hardware: (i) has been altered, except by Cargo Spectre or its authorized representative, (ii) has not been installed, operated, repaired (except by Cargo Spectre or its authorized representative), or maintained in accordance with instructions supplied by Cargo Spectre or its authorized representative, or (iii) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident. Any support provided by Cargo Spectre as a result of any of the above will be invoiced separately and paid at Cargo Spectre’s then-current time and materials rates.

ATTRIBUTION AND PUBLICITY

If Customer posts a picture or screenshot of the Cargo Spectre Products or otherwise references Cargo Spectre and/or its Products on Customer’s website or in any advertisements or marketing materials, then Customer must reference Cargo Spectre as the source using Cargo Spectre’s name, logo and Cargo Spectre copyright notice in such picture, screenshot, advertisement, marketing material or reference. Customer will provide Cargo Spectre with a copy or link to such attribution. All use and goodwill associated with Cargo Spectre’s name and logo will inure to the benefit of Cargo Spectre.

Cargo Spectre may identify Customer as a customer of Cargo Spectre and a user of the Products in marketing materials, on Cargo Spectre’s website and in connection with general lists of customers. Identifying Customer as a customer may include using Customer’s name and/or using an exact copy of Customer’s corporate logo. Customer authorizes Cargo Spectre to publish one whitepaper per year on Customer’s experience and use of the Products; such whitepaper will be subject to Customer’s prior written consent (including via email), which consent will not be unreasonably withheld or delayed. Cargo Spectre will provide Customer with a copy of such whitepaper at least 30 days in advance of publishing it and will consider in good faith any reasonable comments, suggestions and edits from Customer; provided, that if Customer does not respond before the end of such 30-day period, then such whitepaper will be deemed approved by Customer.

TERM AND TERMINATION

This Agreement will become effective on the effective date of the Order and will remain in force for the agreed upon subscription period specified in the Order (“Subscription Term”) stated in the Order, unless terminated earlier as provided in this Agreement. The Subscription Term will automatically renew without notice to Customer for the same period of time as the initial Subscription Term (or such other renewal period of time specified in the Order), unless a party gives the other party written notice of its intent not to renew such Subscription Term at least 30 days (or such other notice period specified in the Order) before the expiration of the then-current Subscription Term.

Cargo Spectre may terminate this Agreement for any or no reason upon 30 days prior written notice to Customer. This Agreement will automatically terminate, without any further action by either party, if Customer breaches any provision of this Agreement. Customer may terminate this Agreement upon written notice to Cargo Spectre if Cargo Spectre materially breaches a provision of this Agreement and fails to cure such material breach within 30 days after receiving written notice of such material breach from Customer.

Upon termination of this Agreement: (i) Customer will keep all Purchased Hardware; (ii) Customer will within 30 days return at Customer’s expense all Subscription Hardware; if the Subscription Hardware is not received by Cargo Spectre within 30 days, then Cargo Spectre will invoice, and Customer will pay, the replacement cost of the Subscription Hardware; (iii) all rights granted to Customer for the Software hereunder will immediately terminate and Customer will promptly destroy all copies of the Software and documentation in Customer’s possession or control; and (iv) each party will destroy all of the other party’s Confidential Information in its possession or control. Upon request, each party will provide the other party with written confirmation it has complied with the foregoing.

Except as otherwise set forth in this Agreement, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party. Termination of this Agreement will not relieve Customer of its obligation to pay all fees that accrued before such termination.

The rights and obligations of the parties contained in Sections 2, 3, 4, 5, 6, 7.c., 7.e., 8.b. to 8.f., 9, 10.c. to 10.e. and 11 of this Agreement, and any other provisions herein which by their nature or implication survive, will survive the termination of this Agreement.

MISCELLANEOUS

This Agreement is governed by the laws of the State of Texas, and the United States, without reference to conflict of laws principles. The United Nations Convention on Agreements for the International Sale of Goods will not apply to this Agreement. The sole jurisdiction and venue for all legal actions relating to this Agreement will be the State and Federal courts in Houston, Texas. Both parties consent to the jurisdiction of such courts with respect to any such actions. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and reasonable attorneys’ fees.

If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.

The parties are independent contractors.

No waiver of any provision of this Agreement, nor consent by Cargo Spectre, to the breach of or departure from any provision of this Agreement, will in any event be binding on or effective against Cargo Spectre unless it is in writing and signed by a duly authorized representative of Cargo Spectre, and then such waiver will be effective only in the specific instance and for the specific purpose for which given.

The failure of Cargo Spectre to enforce at any time any of the provisions of this Agreement will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of Cargo Spectre to enforce each such provision thereafter.

Customer will not have the right or ability to assign or transfer (whether by merger, operation of law or otherwise) this Agreement, in whole or in part, including any obligations or rights under this Agreement without the prior written consent of Cargo Spectre, which consent will not be unreasonably withheld. A change of control of Customer will be deemed an assignment for purposes of this Section. Any attempted assignment or transfer made in violation of this Section will be void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.

Cargo Spectre will not be liable to Customer for any loss, expense or damage caused by or resulting from any force majeure event or any cause or occurrence which is beyond the reasonable control of Cargo Spectre including act of God, fire, accident, war, governmental laws or regulations.

Customer will not export or re-export the Products or related documentation or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations.

In the event of a conflict between these general terms and conditions and the Order, the Order will prevail.

This Agreement contains the complete understanding and agreement of the parties and supersedes all prior and/or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein, and any modifications must be in a writing signed by both parties, except as otherwise provided herein. The term “including” and/or “includes” and the like means “including without limitation”. This Agreement will be construed without regard to any presumption or rule requiring construction against the drafting party.