UBITracer End User Services Agreement

This UBITracer End User Services Agreement is a legal agreement between the licensed user ("You", "End User", “Your”) and Peachcove Corporation DBA UBITracer, a Delaware, USA corporation and its third party manufacturers, service providers, and distributors ("UBITracer", “We”, “Us”, “Our”) regarding using the UBITracer Services (“Services”, “Service”, or “UBITracer Services”), including the UBITracer device, data and software, as provided by Us and Our service providers. You must be at least 13 years old or older to purchase UBITracer Services and enter this Agreement. The Terms and Conditions set forth below govern Your use of UBITracer Services (defined in Section 1 below). If You are an individual acting as a representative of, or are employed by a corporation or other legal entity that wishes to use UBITracer Services, then You represent and agree to enter into this Agreement on behalf of such entity and that all provisions of this Agreement shall bind that entity as if it were named in this Agreement in place of You. By accepting this Agreement or by accessing any portion of the UBITracer Services, You irrevocably agree to the terms of this Agreement, and You represent and warrant that You have all authority necessary to bind Yourself and that entity. Accepting this Agreement, which is also available at www.ubitracer.com/end-user-services-agreement, means that You also agree to Our Privacy Policy available at www.ubitracer.com/privacy, Our Warranty Policy available at www.ubitracer.com/warranty, and Safety Information available at www.ubitracer.com/safety. If You do not agree with the terms of this Agreement, do not access the UBITracer Services because accessing and using the Services means You have accepted these Terms and Conditions. This Agreement is effective on the date when You click to agree to this Agreement, start using UBITracer Services, or open the UBITracer device package.

1. Scope of the “Services”.

These Terms and Conditions shall apply to Your use of UBITracer Services, including some or all of the following: mobile phone application, web application, IoT platform service, API usage, mobile data service, and hardware devices (the UBITracer devices, referred to as “Hardware Devices” or “Devices”) for asset tracking ("Services", "Service", or “UBITracer Services”). These Terms and Conditions (collectively referred to as the "Agreement") represent the parties’ entire understanding regarding the Services.

2. Right to Use the Services.

2.1 During the Subscription Term set forth in a Purchase Order and any renewal thereof, We grant to You a nontransferable and nonexclusive right to access and use the Services subject to the terms of the Agreement.

2.2 Number of application user accounts to access IoT platform via mobile application is 1 (One). If You need more than one user accounts, You must first contact Us and We may charge You for such additional accounts.

2.3 Enterprise features: UBITracer Services provide additional features and functions for enterprise users. This includes but is not limited to additional platform access with tiered security, additional platform features such as geofence and business rule configuration, additional device and shipment management, additional data download and data exchange methods, additional exception detection and real-time alerts, additional features related to supply chain security and quality management, and additional features for asset tracking and turnover management, etc. You agree to notify Us if you are an enterprise user with or without the intention to gain access to these additional features. You may also be subject to different tax liabilities as an enterprise user depending on Your local tax regulations, and You agree to abide by such regulations. We may grant You access to enterprise features or a subset of them at Our option when Your on-going device usage is persistently over a certain level, and We may charge You additional monthly service fee for such access.

2.4 API (“API”) terms of use: You are authorized to use API if 1). You are an enterprise user, 2). Your on-going device usage is persistently over a certain level, and 3). We agree to grant You such usage. You may invoke and use the API in line with the documentation provided to You by Us or Our service providers, for the sole purpose of data integration with IT systems under Your control, in order to implement end-to-end business processes at Your company. You may however not use the API to circumvent or undermine the Services license and usage restrictions according to this Agreement. You may neither fully nor partly rebuild or imitate the logic and/or look and feel of the Our application and user interface, and/or connect such imitation to the Our IoT Platform via the API. The API is provided “as is” and may be subject to change from time to time.

2.5 You shall be solely responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, mobile phones, computers, computer operating system, Internet connections and web browser (collectively, "Equipment"). You shall ensure that Equipment complies with all configurations and specifications set forth in Our published documentation.

3. Usage Restrictions and Representations.

3.1 You shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the Hardware Devices, design, firmware, source code, object code or underlying structure, ideas or algorithms, documentation or data related to or provided with the Services ("Software"); (ii) modify, translate, or create derivative works based on the Services or Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Software; (iii) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to the Services; or (iv) remove any proprietary notices or labels from the Services or Software. You shall use the Services and Software only for Your own benefit, and not for the operation of a service bureau or timesharing service, or otherwise for the benefit of a third party.

3.2 You shall not knowingly or willfully use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with the Hardware Devices and the provision of the Services. You shall be responsible for maintaining the security of the Equipment, the Devices, and Your account access passwords. You and We agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services. You shall be liable for all acts and omissions of You and Your Users, and any illegal activities committed by You and Your Users.

3.3 You represent and warrant that You will use the Services only in compliance with Our software and Hardware Device specifications, and all applicable laws and regulations. You must follow the device installation guide and ensure that the Hardware Devices always operate within their stated limits of environmental conditions (No rinse in water, no tampering with the device, charging with 5V charger, maintaining operating temperature from minus 22 degrees Fahrenheit to 140 degrees Fahrenheit, etc.). We have the full right to reject any warranty, repair or refund requests if the device has experienced excessive heat, submerge in water, destructive strike, tampering, dismantling, covered in dust, over discharge of battery, exhaustion of battery, etc.

Although extensive effort has been made to produce error-free and complete map data, all map data have limitations due to the scale, resolution, and date. We disclaim any responsibility for the accuracy or correctness of this data. This data may be subject to change without prior notification. Map data is provided "as is," without any warranty whatsoever, including but not limited to any warranty as to performance or fitness for any particular purpose. The entire risk as to the results of the use of the map data is assumed by the user. We are not responsible for any interpretation or conclusions made by those who use it, and shall not be liable for any direct, indirect, special, incidental, compensatory, or consequential damages or third-party claims resulting from the use of this data. In states that do not allow the exclusion or limitation of incidental or consequential damages, this data may not be used.

The timely communication of data and provision of services, including the ability to provide real-time monitoring data, may depend on the quality and availability of telecommunication systems. We shall not be held responsible for technical difficulties and data reporting delays resulting from sparse cellular signal, weak cellular signal, temporary cellular service outage and any other detrimental factors. For UBITracer products with satellite positioning, satellite signal may be blocked when not directly exposed to multiple satellites. For UBITracer products with Wi-Fi positioning, Wi-Fi signal may not be available everywhere. Temperature and humidity readings may be inaccurate when newly introduced to a new environment. We shall not be held responsible for inaccurate positioning and inaccurate parameter readings resulting from such adverse operating conditions. Any use of the Hardware Devices beyond the stated purposes, outside the operating environmental conditions, or exposure to any detrimental or hazardous materials and/or conditions constitute abuse of the device. Under any of such circumstances, We shall not be held responsible in any way and by any means.

It is the user's responsibility to ensure that the use of UBITracer Services comply with all applicable laws and regulations. We are not responsible and shall accept no blame for the use of the Device and Service in violation of any laws or regulations.

3.4 Device provision. We will ship ordered devices to You and You shall bear any freight and shipping costs as well as applicable taxes and custom duties thereto. You shall promptly inspect the devices upon receipt to determine whether any items included in the shipment are in short supply, defective, or otherwise not in conformance with this Agreement. Within 5 days of receipt of the devices, You shall notify Us of any shortages, defects, or non-conformance, and We will promptly replace such devices free of charge.

3.5 Loss or damage of devices: In case You should lose or damage any of Your subscribed Hardware Devices, You may choose between the following options:
1. Leave the lost or damaged device unreplaced and notify Us (on-going Service fees will continue to be charged until end of subscription, and renewed if You fail to notify Us);
2. Purchase a new Device to continue the subscribed Service at the then prevailing price, plus shipping cost and any applicable taxes and custom duties.
In neither case will We credit back or waive any Service fees for the lost or damaged devices. You shall continue to pay the full Service fees according to the existing subscription terms.

3.6 Data storage. Subject to 6.3, We will store data generated by Your subscribed devices for one year starting from the creation date of the respective data on the Our IoT Platform. We may delete data older than one year. You may contact Our support to guide You on extracting and storing Your historic data on Your own storage media.

4. Ownership.

4.1 We owns or has rights to all intellectual property rights in and to the Services and Software (including all derivatives or improvements thereof). All suggestions, enhancements requests, feedback, recommendations or other input provided by You or any other party relating to the Services or Software shall be owned by Us, and You shall make all assignments and take all reasonable acts necessary to accomplish the foregoing ownership. Any rights not expressly granted herein are reserved by Us.

4.2 You are entitled to using any data, information or material originated by You that You submit or compile in the course of using the Services ("Customer Data"). Customer Data shall be deemed to be Your Confidential Information pursuant to Section 9 below.

5. Billing and Payment.

5.1 You shall pay all hardware and software usage fees. The fees include a one-time Device fee and an on-going monthly Service fee charged on an annual or semi-annual basis. After You initially activate the first Device You purchase to start the monthly Service, You can cancel the monthly Service within 30 days of accepting this Agreement as long as You return, within the applicable return period, any Devices You purchased from Us or from one of Our authorized retailers, but you’ll still have to pay for the monthly Service for the first 30 days or the first month for all initially activated Devices. After 30 days of initially activating the first Device in Your account, all Service fees are non-cancelable and nonrefundable for all Your Devices, except as expressly specified in Section 7.2 of the Agreement. All Service fees are non-cancelable and nonrefundable for all renewal or additionally activated Devices. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and You shall be responsible for payment of all such taxes, levies, or duties, even if such amounts are not listed on a Purchase Order. Payment for all fees shall be made in U.S. Dollars. You shall bear any wire transfer fees charged by Your bank, if any.

5.2 All amounts invoiced hereunder are due and payable at the time of ordering or renewal. Unpaid or overdue Service fees are subject to a finance charge of 1.5% per month on any outstanding balance, or a flat $5 per month, whichever is greater, if allowed by law, plus all reasonable expenses of collection. The finance charge will be charged to the same bill-to party specified in the respective Purchase Order. If You exhaust balance in Your account, We have the full right to terminate Your Service and You shall continue to pay any outstanding balance.

5.3 If at any time We determines that You are exceeding the Usage Rights, We shall notify You and You agree to pay Us then-current usage fees for such overage.

6. Term and Termination.

6.1 This Agreement is effective on the date when You click to agree to this Agreement, start using UBITracer Services, or open the UBITracer device package and, unless earlier terminated as set forth below, shall remain in effect until all Services subscriptions granted in accordance with the Agreement have expired. The Services shall automatically renew for an additional period equal to the duration of the previous Subscription Term unless You give Us a written notice of non-renewal at least thirty (30) days prior to the end of a Subscription Term. You agree to pay for a renewed Subscription Term thirty (30) days prior to the end of the current Subscription Term unless You give Us a written notice of non-renewal with a 30-day notice.

If You stop the Subscription and do not re-start it within 10 months, the Device will be permanently deactivated, and You will no longer be able to use the said Device to start a new Subscription.

6.2 In the event of a material breach by either party, the non-breaching party shall have the right to terminate the applicable Order or the Agreement for cause if such breach has not been cured within 30 days of written notice from the non-breaching party specifying the breach in detail. We may immediately suspend Your password, account, and access to the Services if (i) You fail to make payment due within ten business days after We have provided You with notice of such failure; or (ii) You violate Section 2.1, 2.2, 2.4, 3, 4 or 9 of these Terms and Conditions. Any suspension of the Services under the preceding sentence shall not relieve You of Your payment obligations under the Agreement. If We terminate an Order or the Agreement for Your material breach, all fees for the Services provided under the terminated Order or the terminated Agreement as of the termination date and liquidated damages equal to the amount of six (6) month Service fees are immediately due as if the Services continued to be provided.

6.3 Upon any termination or expiration of an Order or the Agreement, Your right to access and use the Services shall terminate. Notwithstanding the foregoing, at Your request if received within 30 days of termination, We will permit You to access the Services solely to the extent necessary for You to retrieve a file of Customer Data then in Our possession. You acknowledge and agree that We have no obligation to retain Customer Data and that We may irretrievably delete and destroy Customer Data after 30 days following the termination of the Agreement. All sections of the Agreement which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability

6.4 Environmental friendly disposal of Hardware Devices after termination: The Hardware Devices are Our property and You are licensed to use them. They contain lithium batteries. To avoid unnecessary waste and/or allow a professional recycling/disposal of the Hardware Devices, We encourage You to contact US and send the devices back to Us once the respective subscription is finally terminated. The shipping address for the devices will be provided to You by Us.
In exceptional cases where it would be unreasonable for You to send back a Hardware Device after termination of the subscription, You may dispose of the respective device at Your own expense in an environmental friendly way in line with the laws and regulations of the country and locality of disposal.

7. Representations, Disclaimer of Warranties, Indemnities.

7.1 Each party represents and warrants to the other party that it has the power and authority to enter into the Agreement. We warrant to You that We will use best efforts to (a) perform the Services substantially in accordance with its documentation (documentation includes: hardware installation guide, app user guide, and data sheet in their respective most current versions, as well as usage instructions printed on devices and included in this Agreement) under normal use; and (b) provide the Services in a manner consistent with generally accepted industry standards, including generally accepted industry standards for providing the Services in accordance with the Order, and for ensuring the reliability and availability of the Services to meet the requirements of such Order. You must notify Us of any warranty service request within 30 days of occurrence of deficiency or malfunction in order to receive warranty remedies.

7.2 For breach of the express warranty set forth above, Your exclusive remedy shall be the re-performance of the deficient Services. If We cannot re-perform such deficient Services as warranted, You shall be entitled to recover a pro-rata portion of the fees paid to Us for such deficient Services, and such refund shall be Our entire liability, subject to Section 8 below.

7.3 The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes such as mobile data service outages and other events beyond Our reasonable control, but We shall use reasonable efforts to provide advance notice by e-mail of any scheduled unavailability of the Services.

7.4 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, WE HEREBY DISCLAIM ALL IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT NEITHER US NOR OUR THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET AND CELLULAR NETWORKS, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, OUTAGES, LACK OF SPECIFIC CELLULAR SERVICES, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY US, THE SERVICES ARE PROVIDED TO YOU ON AN "AS IS" BASIS.

8. Limitation of Liability. EXCEPT FOR EACH PARTY'S CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY OR ITS THIRD PARTY LICENSORS SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR LOSS OF BUSINESS OR PROFIT; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, BODILY INJURY OR DEATH; (C) FOR ANY MATTER BEYOND IT'S REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED YOUR ACTUAL PURCHASE PRICE OF THE SPECIFIC UBITRACER DEVICE IN QUESTION OR US$20, WHICHEVER IS GREATER. For example, disallowed damages include those arising out of a Services or Device failure, unauthorized access or changes to Your account or device, or the use of Your account or Device by others for any purpose. This limitation also applies if You bring a claim against one of Our suppliers, to the extent We would be required to indemnify the supplier for the claim.

9. Confidential Information. Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (hereinafter referred to as "Confidential Information" of the Disclosing Party). Such information includes, without limitation, Customer Data, information related to Your login identifiers and credentials for Accounts and the nature and performance of Your marketing programs. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except as expressly permitted in Section 10 below) or divulge to any third person any such Confidential Information unless required by law. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after five years following the termination of the Agreement, or any Confidential Information that the Receiving Party can document (a) is or becomes generally available to the public; or (b) was in its possession or known by it prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party. Customer Data will be destroyed as set forth in Section 6.3, and, upon Your request, We shall certify to such destruction in writing.

10. Statistical Information. Notwithstanding anything else in the Agreement or otherwise, We may monitor Your use of the Services and use Customer Data in an aggregate and anonymous manner, compile statistical and performance information related to the provision and operation of the Services, and may make such information publicly available, provided that such information does not incorporate and/or identify You and Your Confidential Information. We retains all intellectual property rights in such information.

11. Notices. We may give notice applicable to Our general Services customer base by means of a general notice on the Services portal, and notices specific to You by electronic mail to Your e-mail address on record with Us. If You have a dispute with Us, wish to provide a notice under the Agreement, or become subject to insolvency or other similar legal proceedings, You shall promptly send written notice Our Support email found on Our website and product documentation.

12. Force Majeure. Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet service, telecommunication outages, and telecommunication service shutdowns that are not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either party may cancel unperformed Services upon written notice. This section does not excuse either party of its obligations to take reasonable steps to follow its normal disaster recovery procedures or Your obligation to pay for the Services provided.

13. General provisions.

13.1 YOU AND WE EACH AGREE THAT ANY AND ALL CLAIMS OR DISPUTES IN ANY WAY RELATED TO OR CONCERNING THE AGREEMENT OR THE SERVICES, INCLUDING ANY DISPUTES RELATED TO BILLING, OUR WARRANTY INFORMATION AND OUR SAFETY INFORMATION, WILL BE RESOLVED BY BINDING ARBITRATION OR IN SMALL CLAIMS COURT. FURTHERMORE, THIS AGREEMENT DOESN’T ALLOW CLASS OR COLLECTIVE ARBITRATIONS.

This includes any claims against other parties relating to Services or Devices provided or billed to You (such as Our suppliers, dealers, authorized retailers, or third-party vendors) whenever You also assert claims against Us in the same proceeding. You and We each also agree that the Agreement affects interstate commerce so that the Federal Arbitration Act and federal arbitration law, not state law, apply and govern the enforceability of this dispute resolution provision.

IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, YOU AND WE AGREE THAT, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, YOU AND WE UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY WAY. IN THE EVENT OF LITIGATION, THIS PARAGRAPH MAY BE FILED TO SHOW A WRITTEN CONSENT TO A TRIAL BY THE COURT.

13.2 The Agreement represent the parties' entire understanding relating to the Services, and supersede any prior or contemporaneous, conflicting or additional communications. If any provision of the Agreement is held to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

13.3 The Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, USA. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. The failure of either party to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. Except for actions for nonpayment or breach of either party's proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than one year after the cause of action has accrued.

Contact:

After reviewing this agreement, if You have any questions or want more information, please contact Us by e-mail at support@ubitracer.com.

The latest version of this document can be found at www.ubitracer.com/end-user-services-agreement.

Effective from March 2023

Last Revised: March 2023