Terms & Conditions
Software as a Service Standard Terms and Conditions
These Software as a Service Standard Terms and Conditions (the "Agreement") are made between Rocket Industrial, Inc., a Wisconsin corporation ("
Rocket Industrial") and the Customer. This Agreement sets forth the terms upon which Customer may use the Software in connection with the Services.
Customer accepts this Agreement and agrees to be bound by the terms of this Agreement by clicking the "I agree" button on the window which
appears with this Agreement. This Agreement is effective as of the date of the applicable Customer’s consent to be bound by this Agreement, as indicated by clicking
the "I agree" button on the window which appears with this Agreement.
Customer has read this agreement carefully. If customer does not agree to the terms of this
agreement, customer may not utilize the software, services or equipment in any way.
The following terms and conditions are made part of this agreement.
Definitions. Certain terms are defined in this Article 1, and in other provisions of this Agreement:
- "Authorized Users" means Customer and all of its employees, as well as the sublicensees of Customer as permitted under this Agreement and their
- "Customer Content" means any and all information, data, materials, works, expressions or other content, including any that are (a) uploaded,
submitted, posted, transferred, transmitted or otherwise provided or made available by or on behalf of Customer or any Authorized User by or through the Hosted
Environment, or (b) collected, downloaded or otherwise received by Rocket Industrial or the Hosted Environment for Customer or any Authorized User pursuant to
this Agreement. For the avoidance of doubt, Customer Content includes all data of Authorized Users and their personal information, but does not include any data,
content, Source Code, or any other materials, information, or Intellectual Property Rights produced by or for Rocket Industrial.
- "Documentation" means all generally available documentation relating to the Services, including all user manuals, operating manuals and other
instructions, specifications, documents and materials, in any form or media, that describe any component, feature, requirement or other aspect of the Services
or Equipment, including any functionality, testing, operation or use thereof.
- "Equipment" means Packlytics Smart Box, sensor kits, mounting kits, and any additional accessories supplied by Packlytics.
- "Harmful Code" means any software, hardware or other technologies, devices or means, the purpose or effect of which is to: (a) permit unauthorized
access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner, any (i) computer, software, firmware, hardware, system or network,
or (ii) any application or function of any of the foregoing or the integrity, use or operation of any data processed thereby; or (b) any virus, bug, trojan horse,
worm, backdoor or other malicious computer code and any time bomb or drop dead device.
- "Hosted Environment" means the combination of Software and hardware components which an Authorized User has been granted access to under this Agreement.
- "Intellectual Property Rights" means any and all rights comprising or relating to: (a) patents, patent disclosures and inventions (whether
patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated
therewith; (c) authorship rights, copyrights and copyrightable works (including computer programs) and rights in data and databases; (d) trade secrets, know-how
and other confidential information; and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications
for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable Law in any jurisdiction
throughout the world.
- "Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement
or rule of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
- "Person" means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization,
trust, association or other entity.
- "Software" means the Rocket Industrial software application or applications and any third-party or other software, and all new versions, updates,
revisions, improvements and modifications of the foregoing, that Rocket Industrial provides remote access to and use of as part of the Services.
- "Services" means Packlytics IoT cloud software suite, including but not limited to; alerting, reporting, device monitoring, and data warehousing presented
to the end user through a web application.
- "Source Code" means the human readable source code of the Software to which it relates, in the programming language in which the Software was written,
together with all related flow charts and technical documentation, including a description of the procedure for generating object code, all of a level sufficient to
enable a programmer reasonably fluent in such programming language to understand, build, operate, support, maintain and develop modifications, upgrades, updates,
adaptations, enhancements, new versions and other derivative works and improvements of, and to develop computer programs compatible with, the Software.
- 2.1 Grant. Subject to payment of applicable fees and compliance with this Agreement, Packlytics grants to
Customer a non-exclusive, non-transferable, non-sublicenseable, revocable, limited license during the purchased Service Period to use the Packlytics Services for
the online transportation of data as described in the Documentation. Usage of the Packlytics Services shall be limited to the Packytics Service Selection specified
in Customer’s Purchase Confirmation.
- 2.2 Documentation. Customer may utilize the Documentation, if any, provided by Rocket Industrial to Customer during
the Term for the purpose of facilitating its proper use of the Services.
- 2.3 Hosted Environment. The rights set forth in Section 2.1 permit the Customer to use the Services in the
Hosted Environment. Rocket Industrial may alter the Hosted Environment at any time without notice to Customer, provided that such alteration shall not materially
impact Customer’s rights to use the Services under this Agreement.
- 2.4 Equipment. The Equipment shall be installed by Customer in accordance with any Documentation, or by Rocket
Industrial or its agents. The Equipment is hereby leased by Rocket Industrial to Customer for the duration of the Term. Compensation for the lease of the Equipment
hereunder shall be included in the payment of Fees hereunder.
- 2.5 Compliance With Laws. Customer shall comply with all applicable Laws in its use of the Services, Equipment,
and in its performance under this Agreement.
- 2.6 Subcontracting. Rocket Industrial may, in its sole discretion, subcontract any Services, in whole or in part,
without notice to Customer.
- 2.7 Reservation of Rights. Rocket Industrial expressly reserves all rights not expressly granted to Customer under
- 3.1 Term. The term of this Agreement commences on the date that Customer signifies its acceptance to this Agreement by clicking the
"I agree" button on the window which appears with this Agreement and shall continue until terminated in accordance with this Agreement.
- 3.2 Termination for Cause. In addition to any right of termination set forth elsewhere in this Agreement:
- (a) either party may terminate this Agreement, by written notice to the other party effective as of the date specified in such notice, if the other
party breaches this Agreement and such breach remains uncured five (5) days after the breaching party receives written notice thereof with respect to
a payment obligation hereunder or thirty (30) days after the breaching party receives written notice thereof with respect to any other non-payment
obligation hereunder; and
- (b) either party may terminate this Agreement, effective immediately, by written notice to the other party if such other party: (i) becomes insolvent
or admits inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any
domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) days or is not dismissed or vacated within forty-five
(45) days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes or seeks to make a general assignment
for the benefit of creditors; or (v) has or is made subject to the appointment of a receiver, trustee, custodian or similar agent by order of any court of
competent jurisdiction to take charge of or sell any material portion of its property or business.
- 3.3 Termination for Convenience. At any time without cause and without causing any breach or incurring any additional obligation,
liability or penalty, either party may terminate this Agreement upon not less than sixty (60) days written notice to the other party; provided, however, that
Customer may not terminate this Agreement for convenience if the effective date of such termination is less than six (6) months from the commencement date of the Term.
Ownership. Customer retains all rights in its Customer Content, but grants to Rocket Industrial the right to use, store, and access all
Customer Content during the Term of this Agreement and for a period of one (1) year thereafter for any purpose consistent with Rocket Industrial’s performance under
this Agreement or improvement or development of the Services, Software or Hosted Environment. Rocket Industrial shall retain all ownership, right, title and interest
in and to the Services, Software, Source Code, Equipment, any Documentation, and the Hosted Environment, including, without limitation, all Intellectual Property
Rights associated therewith or resulting therefrom (including any derivative works based thereon), and Customer shall only have those rights of use expressly granted
to it under this Agreement with respect thereto.
- 5.1 Customer Restrictions. Customer shall not, and may not cause or permit others to, directly or indirectly:
- (a) Sell, lease, license, sublicense, distribute, or otherwise transfer or make available in whole or in part any of the Services or the Equipment to
any third party, except as expressly permitted under this Agreement;
- (b) Modify, make derivative works based upon, disassemble, decompile, reverse engineer, reproduce, republish or download any part of the Services or
Equipment, or access or use the Services or Equipment in order to build or support (or assist a third party in building or supporting), products or
services which are competitive with the Services or Equipment;
- (c) Use or access the Services or Equipment for any purpose which may infringe upon the rights of any third party;
- (d) Send, process, or store material containing any Harmful Code;
- (e) Remove, obscure, or alter in any way the titles, trade name, trademarks, service marks, copyright or trademark notices, any other notices or
markings indicating Intellectual Property Rights or ownership rights of Rocket Industrial; or
- (f) Otherwise use the Services or Equipment in violation of any provisions of this Agreement.
- 5.2 Sublicense. Customer may sublicense its rights to use the Software to one or more third parties to utilize and access the
Services, provided that Customer obtains the prior written consent of Rocket Industrial, which consent may be withheld, delayed, or conditioned in the sole
discretion of Rocket Industrial. With respect to any such permitted sublicense, the permitted sublicensee shall have the same rights as Customer as provided
under this Agreement and shall constitute an Authorized User (along with such sublicensee’s employees), and shall signify its acceptance by clicking the
"I agree" button on the window which appears with this Agreement, when using the Services (except that the sublicensee shall not have the right to further
sublicense its rights to any other party). Each sublicense terminates automatically on termination or expiration of this Agreement. Customer is responsible
for any breaches of this Agreement caused by any sublicensee or its employee(s). An act or omission of the sublicensee or its employee(s) that would be a
breach of this Agreement if performed by Customer shall be deemed to be a breach by Customer of this Agreement.
Maintenance. Rocket Industrial shall utilize commercially reasonable efforts to continuously maintain the Services and Hosted Environment
to optimize availability of the Services, including providing to Customer any updates, bug fixes, enhancements, new releases, new versions and other improvements to
the Services, which Rocket Industrial may charge Customer additional Fees for, and to undertake services and repairs as are appropriate to maintain the Services.
Rocket Industrial shall not have any obligation to repair or maintain the Equipment. Nothing in this Section 6 shall alter or affect the representations
and warranties or disclaimers made in Section 10 below.
Fees and Expenses. Customer agrees to pay the fees which it has separately agreed to pay to Rocket Industrial in exchange for the Services
and lease of the Equipment as part of the consideration for this Agreement (the "Fees"). The agreement to pay Fees is incorporated into and made part
of this Agreement, and any failure to timely pay Fees shall constitute a breach of this Agreement by Customer. All Fees and amounts are exclusive of taxes. Customer
shall be solely responsible for all sales, service, value-added, use, excise, consumption and any other taxes, duties and charges of any kind, if any, imposed by any
governmental entity on any amounts payable by Customer under this Agreement, other than any taxes imposed on, or with respect to, Rocket Industrial’s income, revenues,
gross receipts, personnel, real or personal property or other assets. Any failure to timely pay the Fees or other amounts hereunder shall constitute a material breach
of this Agreement.
Invoices. Rocket Industrial shall invoice Customer for all Fees and any reimbursable expenses monthly via such delivery means and to
such address as are agreed upon by the parties. Customer shall pay all amounts payable and due hereunder within thirty (30) days after Customer’s receipt of the
invoice therefor. There shall be no right of set-off at any time under this Agreement.
- 9.1 Non-Disclosure. The Receiving Party agrees: (a) to hold the Confidential Information of the Disclosing Party in confidence
and to take reasonable precaution to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with
respect to its own confidential materials); and (b) not to divulge any such Confidential Information or any information derived therefrom to any third party
(except to employees and consultants of the Receiving Party or its affiliates on a "need to know" basis, provided that, in each case, such persons agree to
be similarly bound by this confidentiality restriction).
- 9.2 Return. All Confidential Information owned by the Disclosing Party, including all copies and other reproductions thereof,
whether in written, printed, or computer readable form, made by the Receiving Party, shall be returned to the Disclosing Party by the Receiving Party promptly
upon the earlier of (a) the expiration or termination of this Agreement as provided for herein, or (b) Disclosing Party’s written request therefor, which
request may be made at any time whatsoever for any or no stated reason.
- 9.3 Notice of Compelled Disclosure. In the event that the Receiving Party is requested pursuant to or required by applicable
law or regulation or compelled by legal process to disclose any Confidential Information owned by the Disclosing Party, the Receiving Party will immediately
provide the Disclosing Party with telephonic and written notice thereof and fully cooperate with and assist the Disclosing Party in obtaining a protective
order to either prevent such disclosure or permit such disclosure only upon such terms and conditions regarding the confidentiality thereof as are acceptable
to the Disclosing Party.
- 9.4 Remedies. Without limiting any other rights or remedies which may be afforded to a party under this Agreement, at law or
in equity, in the event of any use or disclosure of Confidential Information owned by the Disclosing Party in violation of this Agreement, the Disclosing
Party may seek and obtain injunctive relief for any breach or threatened breach of this Agreement, in addition to any other legal remedies which may be
available, and shall be entitled to attorneys’ fees and out‑of-pocket expenses in connection therewith.
- 9.5 Definitions. For purposes of this Agreement, "Confidential Information" shall mean information and data,
whether in oral, written, graphic, or machine-readable form that relates in any way to the specifications, designs, drawings, concepts, samples, Intellectual
Property Rights, inventions, know-how, customer lists or information, costs, pricing, manufacturing processes, computer programs and systems, software,
source code, and other technical, business and financial information, whether or not such material has been labeled or stamped as confidential or proprietary.
Notwithstanding the foregoing, Confidential Information shall not include information that the Receiving Party can establish (a) has entered the public
domain without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (b) is rightfully received by the Receiving Party from a third
party without confidentiality restrictions; (c) is known to the Receiving Party prior to first receipt from the Disclosing Party; or (d) is independently
developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information. For purposes of this Agreement, "Receiving Party"
means the party in any instance to which Confidential Information is disclosed by the Disclosing Party. For purposes of this Agreement, "Disclosing Party"
means the party in any instance who discloses Confidential Information to the Receiving Party.
Warranty; Exclusive Remedies; Disclaimer. Rocket Industrial hereby warrants that the Services shall be compliant with the terms of this
Agreement and the Equipment shall be free from material defects in performance for a period of one (1) year from the commencement of the Term. In the event of any
breach of the limited express warranty set forth in this Section 10, the sole and exclusive remedy of Customer shall be for Rocket Industrial, at
Rocket Industrial’s sole and exclusive option, to either repair the defective Equipment, replace the defective Equipment, reperform the defective Services, or issue a
refund of Fees equitably attributable to the defective Equipment or Services. To the greatest extent permitted by law, Rocket
Industrial hereby disclaims all other representations and warranties of any kind, including, without limitation, any implied warranties of merchantability, fitness
for particular purpose, or non-infringement, and Rocket Industrial does not represent or warrant that services, software, source code, equipment, or hosted environment
(A) will be complete, correct, error free or that they will be available on an uninterrupted basis, or that Rocket Industrial can or will fix all service errors,
(B) will operate in combination with any customer content or with any applications, hardware or software maintained or used by customer, (C) will be secure of intrusion
by third parties. No statement of any other party, including, without limitation any employee or agent of Rocket Industrial, or made in any documentation, shall modify
the provisions of this section 10 or other provisions of this agreement.
Indemnification. Customer will indemnify, defend and hold Rocket Industrial, its members, managers, officers, directors, employees and
agents, harmless from and against any losses, liabilities, claims, damages, amounts or expenses (including attorneys’ fees) arising out of or resulting from: (a)
Customer’s breach of any provision of this Agreement (including any breach by any Authorized User); or (b) Customer’s or an Authorized User’s negligence or willful
misconduct; provided, however, that Customer shall not indemnify Rocket Industrial to the extent of (x) Rocket Industrial’s negligence or willful misconduct, or (y)
any claim of infringement of any third-party Intellectual Property Rights as a result of proper use of the Services or Equipment by Customer or an Authorized User
in compliance with the terms of this Agreement and any Documentation.
Disclaimer of Damages. To the greatest extent permitted by law, in no event will either party be
liable under this agreement for any consequential, incidental, indirect, exemplary, special or punitive damages arising out of or in connection with this agreement or
its subject matter, even if advised of the possibility of such damages or such damages are otherwise foreseeable, regardless of the legal or equitable theory (contract,
tort, strict liability or otherwise) upon which the claim is based, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
Liability Cap. To the greatest extend permitted by law, in no event shall Rocket Industrial's
liability under this agreement exceed an amount equal to five times the aggregate fees paid by customer to Rocket Industrial under this agreement (including amounts
already paid and amounts that have accrued, but not yet been paid).
Force Majeure. Neither party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this
Agreement, for any failure or delay in fulfilling or performing any term hereof (except for payment obligations hereunder which are not excused by this
Section 14), when and to the extent such failure or delay is caused by: acts of God, flood, fire or explosion, war, terrorism, invasion, riot or
other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns
or other industrial disturbances (each of the foregoing, a "Force Majeure Event"), in each case provided that such event is outside the reasonable
control of the delayed party.
- 15.1 Further Assurances. Each party shall, upon the request of the other party, execute such documents and perform such acts
as may be reasonably necessary to give full effect to the terms of this Agreement.
- 15.2 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained
in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship
between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- 15.3 Notices. Any notice provided hereunder shall be provided to the party in writing at its last known address (which Customer
and Rocket Industrial agree to exchange) and shall be delivered by overnight delivery service, registered mail or certified mail – return receipt requested.
For purposes of this section, Rocket Industrial’s address for notice shall be: Rocket Industrial Software, Inc., 8101 International Drive, Wausau, WI 54401 USA,
which address may be updated by notice by Rocket Industrial to Customer.
- 15.4 Construction. This Agreement shall be construed without regard to any presumption or rule requiring construction or
interpretation against the party drafting an instrument or causing an instrument to be drafted.
- 15.5 Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
- 15.6 Entire Agreement. This Agreement and any other documents, agreements or instruments incorporated by reference herein,
constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior
and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
- 15.7 Assignment. This Agreement may not be assigned by Customer to any other party without the prior written consent of Rocket
Industrial, which may be withheld, delayed or granted in Rocket Industrial’s sole discretion.
- 15.8 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors
and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person or entity any legal or equitable right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- 15.9 Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing
and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power
or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- 15.10 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction,
such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such
term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- 15.11 Survival. Notwithstanding the other provisions hereof, the provisions of Articles 1, 9, 10, 11, 12, 13 and 15
shall survive the termination or expiration of this Agreement for any reason.
- 15.12 Governing Law; Submission to Jurisdiction. This Agreement and all related documents are governed by, and construed in
accordance with, the laws of the State of Wisconsin, United States of America, without regard to the conflict of laws provisions thereof. Any legal suit,
action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the state or federal
courts located in the State of Wisconsin, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.