Sales Terms

These RoboTire Terms and Conditions (these “Terms”) govern the use of and access to the RoboTire System and Support Services (as defined herein), including RoboTire’s websites, web-based applications and mobile and desktop applications. These terms are attached to the Order Form entered into between RoboTire, Inc., a Delaware corporation, with offices located at 41100 Plymouth Rd., Plymouth, MI 48170 (“RoboTire”) and the customer identified on the Order Form (“Customer”). Capitalized terms used but not defined herein shall have the meaning assigned to them in the Order Form. For the purposes of these Terms, RoboTire and Customer may each be referred to as “party” or, collectively, as the “parties.” The Order Form and these Terms constitute the agreement between the parties (the “Agreement”).

1. DEFINITIONS 
   1.1 “Affiliate” means any Person which controls, or is controlled by, or is under common control with another Person, where “control” means possession, directly or indirectly, of the power to direct or cause the direction of management and policies through ownership of voting securities, a general partnership interest, contract, voting trust or otherwise, including through the direct or indirect legal or beneficial ownership of fifty percent (50%) or more of the voting securities or interest in an entity. The terms “controlled by” and “under common control” shall have corresponding meanings to the word “control.” 
   
   1.2 “Authorized User” means Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Services and have completed all training as required by the Documentation under the rights granted to Customer pursuant to the Agreement.
   
   1.3 “Bankruptcy Event” means a party (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. 
   
   1.4 “Customer Data” means, other than Usage Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User to RoboTire or through the RoboTire System or Support Services, or that is generated for Customer by the RoboTire System.
   
   1.5 “Documentation” means RoboTire’s user manuals, handbooks, and guides relating to the Services provided by RoboTire to Customer electronically.
   
   1.6 “Fees” has the meaning assigned in Section 7.1.
   
   1.7 “Internal Use” means use of the RoboTire System as part of Customer’s ordinary business including to support or enable Customer and its Affiliates in providing tire-related services to the existing and/or future customers of Customer and its Affiliates.
   
   1.8 “Person” includes an individual, company, corporation, partnership, government agency, authority or entity howsoever designated or constituted.
   
   1.9 “Robotics” means any equipment, hardware, products, materials or other tangible goods that are purchased by Customer pursuant to the Order Form.   
   
   1.10 “RoboTire IP” means the Software, the SaaS Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, RoboTire IP includes Usage Statistics and any information, data, or other content derived from RoboTire’s monitoring of Customer’s access to or use of the Services excluding Customer Data. 
   
   1.11 “RoboTire System” means, collectively, the Robotics, Software, SaaS Services and Documentation, and specifically excluding Third-Party Materials.
   
   1.12 “SaaS Services” means RoboTire’s proprietary software-as-a-service platform. 
   
   1.13 “Services” means the SaaS Services and the Support Services.  
   
   1.14 “Software” means the executable, object code version of any software owned or exclusively licensed by RoboTire that is installed on the Robotics. All Software will be pre-installed on the applicable Robotics.
   
   1.15 “Support Addendum” means the Support Addendum attached hereto as Schedule 1, which describes the Support Services and applicable service levels for the SaaS Services
   
   1.16 “Support Services” means the provision of support services as described in the Support Addendum.
   
   1.17 “Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the RoboTire System or Support Services that are not proprietary to RoboTire, including, without limitation, any equipment provided by third-party manufacturers (including, without limitation, Hunter Engineering Company, VSG Corporation and their Affiliates), that is combined with the RoboTire System to perform autonomous tire changing, such as any RoboTire-approved hoist, tire changer and tire balancer (e.g., Rotary RLP77 Double Scissor Lift, Hunter Engineering Revolution Tire Changer (4th Generation) and Hunter Engineering Road Force Elite Wheel Balancer (Model RFE13)).
   
   1.18 “Usage Statistics” means aggregated, anonymized data and other information derived from or relating to the provision, use and performance of various aspects of the RoboTire System and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom). For clarity, Usage Statistics may arise from processing Customer Data, but Customer Data is specifically excluded from Usage Statistics.

2. ROBOTIRE SYSTEM 
   2.1 Robotics Purchase. RoboTire will sell to Customer and Customer will purchase from RoboTire the Robotics set forth on the Order Form, in the quantities and at the prices stated in the Order Form. Unless otherwise stated in the Order Form, Customer will pay all applicable sales taxes and third-party expenses imposed on or otherwise in connection with this purchase. Except as otherwise set forth in the Order Form, RoboTire will deliver the Robotics FOB shipping point, and title to (subject to the security interest granted to RoboTire in accordance with this Section 6, or any other financing arrangement procured by Customer and approved by RoboTire) and risk of loss of the Robotics will pass to Customer upon such delivery by RoboTire. 
   
   2.2 SaaS Services. Subject to and conditioned on Customer’s payment of Fees and compliance with the Agreement, RoboTire hereby grants Customer, during the Subscription Term, a limited, non-exclusive, non-sublicensable, non-transferable right to access and use the SaaS Services solely for Customer’s Internal Use or as otherwise set forth in the Documentation, and solely by Authorized Users in accordance with the Agreement.  
   
   2.3 Software. Subject to and conditioned on Customer’s payment of Fees and compliance with the Agreement, RoboTire hereby grants Customer, during the Subscription Term, a limited, non-exclusive, non-sublicensable, non-transferable license to use the Software solely as necessary to use the Robotics and solely for Customer’s Internal Use or as otherwise set forth in the Documentation, and solely by Authorized Users in accordance with the Agreement.
   
   2.4 Documentation. Subject to and conditioned on Customer’s payment of Fees and compliance with the Agreement, RoboTire hereby grants Customer, during the Subscription Term, a limited, non-exclusive, non-sublicensable, non-transferable right to access and use the Documentation solely for Customer’s Internal Use or as otherwise set forth in the Documentation.  
   
   2.5 Third-Party Materials. Customer acknowledges that the RoboTire System requires use of certain Third-Party Materials, and Customer agrees to be required to execute a click-through, shrink-wrap End User License Agreement (EULA) or similar license agreement provided by the Third-Party Materials provider. Customer further acknowledges that Customer’s use of any Third-Party Materials is subject to the applicable third-party license terms and conditions, and RoboTire disclaims any responsibility or liability related to any Third-Party Materials.

3. SUPPORT SERVICES  
   3.1 Support. In connection with the purchase of Robotics and the license and access grants set forth in Section 2, RoboTire shall also provide the Support Services during the Term. The Support Services are described in the Support Addendum and shall be provided in accordance with the terms of the Agreement and the Support Addendum.

4. RESTRICTIONS AND RESPONSIBILITIES 
   4.1 Restricted Use. The Software and SaaS Services may only be used as necessary to operate and use the Robotics. The RoboTire System may only be used by Customer for its Internal Use. Customer shall not use the Software or access or use the SaaS Services in connection with any other hardware, equipment or materials, including any other robotics or Third-Party Materials, in each case that have not been provided to Customer by or on behalf of RoboTire. Additionally, Customer shall not access or use the Third-Party Materials except as expressly permitted by the applicable third-party license agreement.
   
   4.2 Restrictions. Except as otherwise expressly permitted by the Agreement, Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) use the RoboTire IP for any purposes beyond the scope of the license and access granted in the Agreement; (ii) copy, modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of the RoboTire IP, in whole or in part; (iii) rent, lease, sublease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the RoboTire System or Support Services to any third party; (iv) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to any source code software component of the RoboTire IP, in whole or in part; (v) bypass or breach any security device or protection used for or contained in the RoboTire IP; (vi) remove, alter, obscure, or otherwise change any proprietary notices from the RoboTire IP; (vii) use the RoboTire IP or Support Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; or (viii) use the RoboTire IP for purposes of: (1) benchmarking or competitive analysis of the RoboTire IP; (2) developing, using, or providing a competing software product or service; or (3) any other purpose that is to RoboTire’s detriment or commercial disadvantage. Although RoboTire has no obligation to monitor Customer’s use of the RoboTire System or RoboTire IP, RoboTire may do so and may prohibit any use of the RoboTire System or RoboTire IP it reasonably believes may be in violation of the foregoing.
   
   4.3 Customer Equipment. Customer shall be responsible for obtaining and maintaining any materials, equipment and ancillary services needed to prepare its premises for installation of the RoboTire System, and to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Customer Equipment”). Customer shall also be responsible for maintaining the security of the Customer Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Customer Equipment with or without Customer’s knowledge or consent. Customer shall be responsible for any damages or injuries caused by the Customer Equipment.
   
   4.4 Cooperation. Customer will reasonably cooperate in the provision of the Services by providing RoboTire: (a) timely decision-making; (b) notification of relevant issues or information; (c) access to applicable information, personnel, facilities, and Customer Equipment; and (d) any other assistance as reasonably requested by RoboTire. RoboTire shall be entitled to rely on all decisions and approvals of Customer. Customer shall also take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in RoboTire’s provision of the Services.
   
   4.5 Access. When RoboTire personnel provide Services on Customer’s premises, Customer will provide RoboTire personnel with (a) access to a suitable workspace and Customer Equipment for performance of the Services, including phone, network and internet access and office supplies, as applicable; (b) necessary security access; (c) access to Customer’s facilities, such as networking systems, and relevant information, including software, hardware and documentation; and (d) any other items set forth in the Order Form or reasonably requested by RoboTire
   
   4.6 Updates and Fixes. Customer is required to install all patches, bug fixes, corrections, updates, upgrades, replacements, enhancements, support and maintenance releases or other modifications (collectively, “Updates and Fixes”), made available by RoboTire or a provider of any Third-Party Materials, in a timely manner. 
   
   4.7 Maintenance. Customer is required to perform routine maintenance of the Robotics, as described in the Documentation, and as may be reasonably requested by RoboTire. In addition, Customer shall at all times use the Robotics in a careful and reasonable manner, and shall comply with all laws relating to its possession, use or maintenance and keep the Robotics in good and efficient working order. The Robotics shall be kept at the location specified in the Order Form, and shall not be removed without RoboTire’s prior written consent. RoboTire, its employees and/or agents shall at all times have access to the Robotics for the purpose of performing inspections. Customer shall not, without the prior written consent of RoboTire, make any alterations, additions, or improvements to the Robotics. All such alterations or improvements so made shall belong to and remain the property of RoboTire. Customer shall keep the Robotics free and clear of all levies, liens, and encumbrances (other than any security interests retained by RoboTire or an approved lender in accordance with these Terms).
   
   4.8 Failure to Update and Maintain. Customer acknowledges that if Customer fails to timely install all Updates and Fixes or fails to perform the required routine maintenance, as described in Sections 4.6 and 4.7 respectively of these Terms, then such failure may negatively affect performance of the RoboTire System, and Customer acknowledges and agrees that RoboTire will not be responsible for any deficiencies in the performance of the RoboTire System, or for any damages or injuries caused by such failure.   
   
   4.9 Repairs. Except for the performance of routine maintenance as described in Section 4.7 of these Terms, Customer shall not, and shall not allow any person, other than RoboTire personnel, to work on, service, modify, repair, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of the RoboTire System. Any action taken by or on behalf of Customer in violation of the foregoing prohibitions shall be a material breach of the Agreement, and Customer acknowledges and agrees that any such violation will invalidate the warranties set forth in these Terms, RoboTire will be excused from any failure to perform its obligations under the Agreement, including those set forth in the Support Addendum, resulting from Customer’s breach of this Section, and RoboTire shall not be responsible for any Losses (as defined below) or other liabilities resulting from any actions taken by Customer in violation of this Section. Notwithstanding the foregoing, Customer may facilitate repairs of Third-Party Materials in its possession and control, provided that such repairs are performed by the provider of such Third-Party Materials, or a party officially authorized to perform repairs by the provider of such Third-Party Materials (each, an “Authorized Third-Party Technician”) and provided further that Customer acknowledges and agrees that RoboTire shall not be responsible nor liable for any damages to or failure of the RoboTire System, or any damages or injuries caused by an Authorized Third-Party Technician.
   
   4.10 Authorized Users. Customer is responsible and liable for all uses of the Services resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of the Agr eement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of its Authorized Users, and any act or omission by an Authorized User that would constitute a breach of the Agreement if taken by Customer will be deemed a breach of the Agreement by Customer. 
   
   4.11 Loss and Damage to Robotics. Customer is responsible for, and shall bear the entire risk of loss of, any theft, damage or destruction of the Robotics, occurring during the period from delivery of the Robotics at Customer’s site to RoboTire’s purchase, and Customer’s return of such Robotics to RoboTire in accordance with the Option (as defined below), from any cause whatsoever including, without limitation, damage caused by misuse, accident (e.g., accidental physical impact, exposure to liquid, food or other contaminants, etc.), neglect, abuse, alteration, improper or unauthorized repair or modification (including any violation of Sections 4.7 or 4.7 of these Terms), tampering, or use with unsuitable equipment, devices, software, services, other unauthorized third-party item(s)), in each case that is not covered specifically under the Support Services described in the Support Addendum (each, an “Uncovered Loss”). If RoboTire retains a security interest in the Robotics pursuant to Section 6 of these Terms then, in the event of any loss, theft, damage or destruction to any Robotics due to an Uncovered Loss, RoboTire will, at its option, either (a) repair such Robotics at Customer’s cost and expense, or (b) replace such Robotics and charge Customer for (i) the remaining balance due for such lost, stolen, damaged or destroyed Robotics; and (ii) the cost of the replacement Robotics (including shipping and installation costs). No Uncovered Loss shall relieve Customer of the obligation to pay Fees or to comply with any other obligation under the Agreement.
   
   4.12 Insurance. Customer will insure the Robotics against all hazards (including loss, theft, damage or destruction) in form and amounts and with an insurance satisfactory to RoboTire, in an amount not less than the full replacement value of the Robotics. Customer shall also provide and maintain comprehensive general all-risk liability insurance, including but not limited to product liability coverage, with such limits and with an insurer as are satisfactory to RoboTire. Each policy shall expressly provide that said insurance as to RoboTire and its assigns shall not be invalidated by any act, omission or neglect of Customer and cannot be canceled without 30 days written notice to RoboTire. As to each policy, Customer shall furnish to RoboTire a certificate of insurance from the insurer, which certificate shall evidence the insurance coverage required by this Section and shall designate RoboTire as loss payee and/or additional insured. In the event of damage to the Robotics and payment of insurance, RoboTire shall have the option of replacing the Robotics or applying the proceeds on any obligation secured by the Agreement. 
   
   4.13 Customer Data. Customer represents and warrants that Customer has obtained all necessary licenses and met all other requirements required by applicable law in order to use the RoboTire System and provide the Customer Data hereunder. Customer shall be responsible for the accuracy, quality, appropriateness, and legality of all Customer Data.   
   
   4.14 Licenses and Permits. RoboTire is not responsible for and will not obtain any permits, including any building permits, or any other permits or licenses required by applicable local, city, county, state or federal laws or requirements. Customer is solely responsible for obtaining all permits necessary for the delivery, installation, operation and repairs of the RoboTire System, except as otherwise agreed to in the Order Form. 

5. CONFIDENTIALITY 
   5.1 Confidential Information. The term “Confidential Information” shall mean any and all information or proprietary materials (in every form and media) which has been or is hereafter disclosed or made available by either party (the “disclosing party”) to the other (the “receiving party”) in connection with the efforts contemplated hereunder, that the disclosing party considers confidential or proprietary, including information consisting of or relating to the disclosing party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the disclosing party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential.” Without limiting the foregoing: Confidential Information of RoboTire includes non-public information regarding features, functionality and performance of the RoboTire System, Support Services, and Usage Statistics. Confidential Information of Customer includes Customer Data. The terms and existence of the Agreement are the Confidential Information of each of the parties.   
   
   5.2 Confidentiality Obligations. For a period of three (3) years from the date of disclosure of the applicable Confidential Information (as hereinafter defined), Customer and RoboTire shall each (i) hold the Confidential Information of the other in trust and confidence and avoid the disclosure or release thereof to any other person or entity by using the same degree of care as it uses to avoid unauthorized use, disclosure, or dissemination of its own Confidential Information of a similar nature, but not less than reasonable care; and (ii) not use the Confidential Information of the other party for any purpose whatsoever except as expressly contemplated under the Agreement. For clarity, notwithstanding the foregoing, to the extent Confidential Information includes any trade secrets, such information shall be subject to, and protected under the Agreement as Confidential Information for so long as such information is a “trade secret” under applicable laws. The receiving party shall only disclose the Confidential Information of the disclosing party to those of its or its Affiliates’ employees, subcontractors, officers, directors and legal advisors (collectively, “Representatives”) who: (i) need to know such Confidential Information for purposes of the receiving party’s exercise of its rights or performance of its obligations under and in accordance with the Agreement; (ii) have been informed of the confidential nature of the Confidential Information and receiving party’s obligations under this Section 5; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 5.  
   
   5.3 Exceptions. The obligations of either party under Section 5 will not apply to information that (i) was in the receiving party’s possession at the time of disclosure and without restriction as to confidentiality; (ii) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the receiving party; (iii) has been received from a third party without restriction on disclosure and without breach of agreement by the receiving party; or (iv) is independently developed by the receiving party without regard to the Confidential Information of the disclosing party.  
   
   5.4 Compelled Disclosures. If the receiving party or any of its Representatives is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the receiving party shall: (i) promptly, and prior to such disclosure, notify the disclosing party, at the disclosing party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the disclosing party waives compliance or, after providing the notice and assistance required under this Section 5.4, the receiving party remains required by law to disclose any Confidential Information, the receiving party shall disclose only that portion of the Confidential Information that the receiving party is legally required to disclose and, on the disclosing party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
   
   5.5 Personal Information. Neither party intends to provide or disclose to the other party any personal information. Any disclosure of personal information by either party to other party shall be deemed an “Inadvertent Disclosure.” If a party discovers that an Inadvertent Disclosure has taken place, it agrees to: (a) promptly contact the other party of its discovery of such Inadvertent Disclosure; (b) take reasonable steps necessary to keep all personal information contained within such Inadvertent Disclosure confidential while the same is in its possession; and (c) cooperate as reasonably necessary with the other party’s information security team to facilitate the return or destruction of all such personal information.

6. INTELLECTUAL PROPERTY; OWNERSHIP 
   6.1 RoboTire IP. Customer acknowledges that, as between Customer and RoboTire, RoboTire owns all right, title, and interest, including all intellectual property rights, in and to (a) the RoboTire IP, as well as all improvements, enhancements or modifications thereto; (b) any software, applications, inventions or other technology developed in connection with the provision of the Support Services; and (c) all intellectual property rights related to any of the foregoing. RoboTire reserves all rights not expressly granted to Customer in the Agreement. Except for the limited rights and licenses expressly granted under the Agreement, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the RoboTire IP.
   
   6.2 Customer Data. RoboTire acknowledges that, as between RoboTire and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. RoboTire may only use Customer Data to provide to Customer the Services during the Term of the Agreement or as directed by Customer in writing, and to create Usage Statistics. For the avoidance of doubt, nothing in this Section 6.2 is intended to limit or restrict RoboTire’s ability to create Usage Statistics as set forth below.
   
   6.3 Usage Statistics. Notwithstanding anything to the contrary in the Agreement, RoboTire may monitor Customer’s use of the RoboTire System and collect and compile Usage Statistics. As between RoboTire and Customer, all right, title, and interest in Usage Statistics, and all intellectual property rights therein, belong to and are retained solely by RoboTire. Customer acknowledges that RoboTire may compile Usage Statistics based on Customer Data input into the Services.  
   
   6.4 Feedback. Customer acknowledges and agrees that RoboTire may, at its discretion and for any purpose, use, modify, and incorporate into the RoboTire System or Support Services any suggestions, enhancement requests, and other recommendations provided by Customer or any Authorized User relating directly to the RoboTire System (“Feedback”), without any attribution or compensation to any party, for any purpose whatsoever, although RoboTire is not required to use any Feedback.
   
   6.5 Third-Party Materials. Nothing in the Agreement grants any right, title, or interest in or to (including any license under) any intellectual property rights in or relating to the Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Third-Party Materials are and will remain with the respective rights holders in the Third-Party Materials.
   
   6.6 Robotics. Until RoboTire has received payment in full for the Robotics, Customer grants to RoboTire, and RoboTire retains, a security interest in the Robotics and any and all parts, accessories, attachments, additions, and other goods and all replacements of them installed in, affixed to, or used in connection with the Robotics or, if Customer sells or otherwise disposes of the Robotics in violation of the terms of the Agreement, in the proceeds of such sale or disposition (including accounts receivable). Customer will sign and deliver to RoboTire any document to perfect this security interest that RoboTire reasonably requests.

7. FEES; PAYMENT TERMS 
   7.1 Fees. Customer shall pay RoboTire the fees set forth in each Order Form (“Fees”) in accordance with this Section 7. Unless otherwise set forth in the Order Form, RoboTire reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial term of the Order Form or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that RoboTire has billed Customer incorrectly, Customer must contact RoboTire no later than 120 days after the date the invoice is received, in order to receive an adjustment or credit. 
   
   7.2 Payment. Unless otherwise set forth in the Order Form, Customer shall pay all Fees within thirty (30) days after the date of the applicable invoice, subject to Customer’s ability to withhold payment of amounts disputed in good faith pending resolution of the dispute. Customer shall make all payments hereunder in US dollars. Customer shall make payments to the address or account specified in the Order Form or such other address or account as RoboTire may specify in writing from time to time. Unpaid past-due amounts are subject to a finance charge of one and a half percent (1.5%) per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all costs and expenses of collection, and may result in immediate termination of Service.
   
   7.3 Taxes. All Fees and other amounts payable by Customer under the Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on RoboTire’s income.
   
   7.4 No Deductions or Setoffs. All amounts payable to RoboTire under the Agreement shall be paid by Customer to RoboTire in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
   
   7.5 Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two (2) years after the termination or expiration of the Agreement with respect to matters necessary for accurately determining amounts due hereunder. During the Term, and for a period of two (2) years after the termination or expiration of the Agreement, no more than once per year, RoboTire may, at its own expense, on reasonable prior notice during Customer’s normal business hours and at a time and in a manner that does not disrupt Customer’s business, audit Customer’s records with respect to matters covered by the Agreement, provided that if such audit shows that Customer has underpaid RoboTire with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 7.2 of these Terms. Customer shall pay for the costs of the audit if the audit determines that Customer’s underpayment equals or exceeds five percent (5%) for any quarter.

9. WARRANTIES; DISCLAIMER 
   9.1 Title to Robotics. RoboTire has good and marketable title to the Robotics, free and clear of all security interests, liens and encumbrances.
   
   9.2 Service Levels. RoboTire warrants that, during the Subscription Term, the SaaS Services will conform in all material respects to the service levels set forth in the Support Addendum, when accessed and used in accordance with the Documentation. RoboTire does not make any representations or guarantees regarding uptime or availability of the SaaS Services unless specifically identified in the Support Addendum. The remedies set forth in the Support Addendum are Customer’s sole remedies and RoboTire’s sole liability under the Agreement for any breach of this warranty.   
   
   9.3 Performance of Support Services. RoboTire warrants that, during the Subscription Term, it shall perform the Support Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards. Customer’s sole and exclusive remedy in the event that the Support Services fail to materially conform to the performance warranty set forth in this Section 9.2 is that, if notified by Customer of such failure, RoboTire shall, at its sole expense, promptly use commercially reasonable efforts to cure or correct such failure.
   
   9.4 DISCLAIMER. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 9, THE ROBOTIRE SYSTEM AND ROBOTIRE IP ARE PROVIDED “AS IS” AND ROBOTIRE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND ROBOTIRE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, ROBOTIRE MAKES NO WARRANTY OF ANY KIND THAT THE ROBOTIRE SYSTEM OR ROBOTIRE IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS, AND ROBOTIRE HEREBY DISCLAIMS ANY AND ALL LIABILITY RELATING TO CUSTOMER’S USE THEREOF.

10. INDEMNIFICATION 
    10.1 RoboTire Indemnification. RoboTire shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any claim, suit, action, or proceeding brought by a third party (other than an Affiliate of Customer) (each, a “Third-party Claim”) alleging that the SaaS Services or any use of the SaaS Services (excluding Third-Party Materials or Customer Data) in accordance with the Agreement, infringes or misappropriates such third party’s US intellectual property rights (each, an “IP Infringement Claim”). The foregoing obligation with respect to any IP Infringement Claim does not apply to any Third-party Claim or Losses to the extent relating to any: (i) access to or use of the SaaS Services in combination with any robotics, equipment, hardware, system, software, network or other materials or service not provided or authorized in writing by RoboTire; (ii) modification of the SaaS Services other than: (1) by or on behalf of or authorized by RoboTire; or (2) with RoboTire’s written approval in accordance with RoboTire’s written specifications; (iii) failure to timely implement Updates, Fixes, modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of RoboTire or a provider of Third-Party Materials, or failure to perform any required routine maintenance; (iv) Customer Data; (v) Third-Party Materials or Customer Equipment; or (vi) matter described in Section 10.2 of these Terms, whether or not the same results in any Third-party Claim against or Losses by any RoboTire Indemnitee (as defined below).
    
    10.2 Customer Indemnification. Customer shall indemnify, hold harmless, and defend RoboTire from and against any Losses resulting from any Third-party Claim (i) alleging that the Customer Data, or any use of the Customer Data in accordance with the Agreement, infringes or misappropriates such third party’s US intellectual property rights or other privacy rights; (ii) alleging breach of Customer’s confidentiality obligations; or (iii) based on Customer’s or any Authorized User’s (1) negligence or willful misconduct; (2) use of the RoboTire System in a manner not authorized by the Agreement; (3) use of the RoboTire System in combination with data, software, hardware, equipment, robotics or technology not provided by RoboTire or authorized by RoboTire in writing; (4) acts or omissions resulting in personal injury (including death) or property damage; or (5) modifications (including repairs) to the RoboTire System not made by RoboTire.
    
    10.3 Mitigation. If an IP Infringement Claim is made, or in RoboTire’s opinion is likely to be made, RoboTire may, at its option and sole cost and expense: (i) obtain the right for Customer to continue to use the SaaS Services, materially as contemplated by the Agreement; (ii) modify or replace the SaaS Services, in whole or in part, to seek to make the SaaS Services (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute the SaaS Services, as applicable, under the Agreement; or if neither (i) nor (ii) are commercially reasonable, terminate the Agreement with respect to all or part of the SaaS Services, require Customer to immediately cease any use of the SaaS Services or any specified part or feature thereof.
    
    10.4 Indemnification Procedures. Each party shall promptly notify the other party in writing of any Third-party Claims for which such party believes it is entitled to be indemnified pursuant to Section 10.1 or Section 10.2 of these Terms, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Third-party Claim and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 10.4 will not relieve the Indemnitor of its obligations under this Section 10 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. Neither party, as the Indemnitor, shall enter into any settlement that imposes any liability on the Indemnitee without the prior written consent of the Indemnitee to be affected by the settlement.
    
    10.5 SOLE REMEDY. THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SAAS SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. THE INDEMNITY OBLIGATIONS SET FORTH EXPRESSLY IN THESE TERMS ARE THE SOLE AND EXCLUSIVE INDEMNITIES OWED IN CONNECTION WITH, ARISING FROM, BASED UPON, OR FLOWING FROM THE AGREEMENT, EXCLUDING ALL OTHER INDEMNITIES THAT MAY ARISE UNDER APPLICABLE LAWS OR OTHERWISE.

11. LIMITATION OF LIABILITY 
    11.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL ROBOTIRE BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER ROBOTIRE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.  
    
    11.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF ROBOTIRE AND ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO ROBOTIRE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE

12. MISCELLANEOUS 
    12.1 Non-Solicitation. During the Term hereof and for a period of twelve (12) months thereafter, neither party shall, directly or indirectly, solicit for employment or employ, or accept services provided by, (i) any employee or subcontractor of the other party (including employees or subcontractors of RoboTire’s Affiliates); or (ii) any former employee or former subcontractor of the other party (including former employees or former subcontractors of RoboTire’s Affiliates) who performed any work in connection with or related to the Services. Notwithstanding the foregoing, general solicitations for employment not directed to a specific employee or group of employees within either party’s organization, including, without limitation, those placed in publications that are in general circulation or on the internet, shall not be considered solicitations in violation of this Section.
    
    12.2 Subcontractors. RoboTire may use contractors or subcontractors, and other third-party providers in connection with the performance of its own obligations hereunder as it deems appropriate; provided that RoboTire remains responsible for the performance of each such subcontractor. Notwithstanding anything to the contrary in the Agreement, with respect to any third-party vendors including any hosting or payment vendors, RoboTire will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of RoboTire.
    
    12.3 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the 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.
    
    12.4 Entire Agreement. The Agreement, together with any other documents incorporated herein by reference and all referenced Addenda, constitute the sole and entire agreement of the parties with respect to the subject matter of the Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the Order Form, and these Terms, the following order of precedence shall apply: (i) first, the Order Form; (ii) second, these Terms; and (iii) third, any Addenda attached to these Terms.
    
    12.5 Headings. The headings in these Terms are for reference only and do not affect the interpretation of the Agreement.
    
    12.6 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the parties at the addresses set forth on the first page of the Agreement (or to such other address that may be designated by the party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in the Agreement, a Notice is effective only: (i) upon receipt by the receiving party; and (ii) if the party giving the Notice has complied with the requirements of this Section.
    
    12.7 Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to the Agreement or, unless expressly permitted under the Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association or sponsorship, in each case, without the prior written consent of the other party, which shall not be unreasonably delayed or withheld, provided, however, that RoboTire may, without Customer’s consent, include Customer’s name and other indicia in its lists of RoboTire’s current or former customers of RoboTire in promotional and marketing materials.
    
    12.8 Force Majeure. In no event shall either party be liable to the other party, or be deemed to have breached the Agreement, for any failure or delay in performing its obligations under the Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, pandemic, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo, or downtime caused by a third-party hosting provider (each, a “Force Majeure Event”), provided that in each case such party uses reasonable efforts, under the circumstances, to notify the other party of the Force Majeure Event causing the delay and to resume performance as soon as possible.
    
    12.9 Amendment and Modification; Waiver. Customer agrees that from time to time RoboTire may modify these Terms and that any such changes shall become effective immediately. Any other changes to the Agreement may only be made by a written amendment executed by duly authorized officers or representatives of both parties. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement will operate or be construed as a waiver thereof; and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege
    
    12.10 Severability. If any provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of the 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 shall negotiate in good faith to modify the Agreement so as to effect their original intent 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. 
    
    12.11 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Michigan. Any legal suit, action, or proceeding arising out of or related to the Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Michigan in each case located in the city of Detroit and County of Wayne, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
    
    12.12 Limitation of Actions. No action arising out of or relating to the Agreement or the RoboTire System or the Support Services may be commenced against RoboTire more than twelve (12) months after the basis for such claim could reasonably have been discovered.
    
    12.13 Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to the Agreement or the transactions contemplated hereby.
    
    12.14 Assignment. Customer may not transfer or assign any of its rights or delegate any of its obligations hereunder, including in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or stock (or any property or facility where the RoboTire System is installed), in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of RoboTire. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns.
    
    12.15 Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Software or SaaS Services or any Customer Data outside the U.S.
    
    12.16 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 5 of these Terms or, in the case of Customer, Section 4 of these Terms, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including an injunction or specific performance, and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise. 
    
    

RoboTire Support Addendum 

This Support Addendum (this “Addendum”) is attached to, governed by, and incorporated by reference into the RoboTire System Terms and Conditions (the “Terms”). Capitalized terms used but not defined herein shall have the meaning assigned to them in the Terms. For the purposes of this Addendum, RoboTire and Customer may each be referred to as “party” or, collectively, as the “parties.”

• Application.
  • This Support Addendum applies with respect to the provision of Support Services during an active Subscription Term pursuant to an Order Form.   

• Modifications
  • Customer agrees that from time-to-time RoboTire may modify this Addendum and that any such changes shall become effective immediately. 

• Delivery, Installation and Setup.
  • Prohibitions.  Customer is prohibited from (a) unboxing, opening or otherwise disturbing the contents of the RoboTire System deliveries, and (b) attempting to set up or install the RoboTire System.  RoboTire personnel will install and set up the RoboTire System as described herein.  Any action taken by or on behalf of Customer in violation of the foregoing prohibitions shall be a material breach of the Agreement, and RoboTire will be excused from any failure to perform its obligations under the Agreement and this Addendum, and RoboTire shall not be responsible for any Losses resulting from Customer’s breach of this prohibition. 
    
  • Delivery.  RoboTire will work with Customer to ensure Customer’s site meets RoboTire’s requirements for delivery and installation of the Robotics as set forth in the Documentation.  Any modifications, improvements, repairs or other expenditures made to prepare Customer’s site shall be at Customer’s sole cost and expense.  Customer will notify RoboTire once the applicable Customer site is ready for delivery and installation of the RoboTire System.  After receipt of such notice from Customer, RoboTire will provide Customer with an estimated delivery date for the RoboTire System, and RoboTire will use commercially reasonable efforts to deliver the RoboTire System by the estimated delivery date; provided that RoboTire will not be liable for any losses, damages, penalties, or expenses for failure to meet any estimated delivery date.   
  • Installation and Setup.
    • Except as otherwise set forth below, RoboTire will provide all equipment, tools, and personnel necessary to install and set up the RoboTire System, including, without limitation, all electrical and pneumatic connection within six (6) feet and all necessary hydraulic fluid. 
      
    • Following delivery of the RoboTire System, RoboTire shall as promptly as practicable, and in any case not later than two (2) weeks from delivery, procure one (1) or more RoboTire employees with appropriate knowledge and experience (as determined by RoboTire) to provide the initial on-site set-up, installation and operational launch of the RoboTire System for Customer.  In the event that (i) RoboTire fails to meet this timeframe (and such failure is not excused in accordance with the provisions of the Terms), and (ii) the Robotics have been delivered in a location on Customer’s premises that negatively impacts Customer’s business in a material manner, then RoboTire shall move the Robotics to a different location on the same premises (or another mutually agreed location), at RoboTire’s cost and expense.   
      
  • Exclusions.
    • RoboTire is not responsible for any modifications, improvements, repairs or other expenditures made to prepare Customer’s site for delivery and/or installation, including any reinforcement of existing concrete slabs or electrical wiring beyond what is specifically set forth in the applicable Order Form.  Specifically, Customer, not RoboTire, is responsible for providing all utility lines and hookups necessary for installation, including without limitation, air and electrical connections and for making the connection between the RoboTire System to all necessary utilities, including air and electrical. 
      
    • The delivery and installation services also specifically exclude all seismic, structural, or engineering calculations, except as otherwise set forth in the applicable Order Form (with additional Fees).  
      
    • If any changes to the schedule, or to the preparation, delivery, installation or setup of the RoboTire System at a Customer site are necessary, such changes will require a written change order or Order Form amendment, in each case signed by both parties that describes the changes and any related cost adjustments. 
      
  • Confirmation.  Upon completion of the installation process, RoboTire will confirm that the RoboTire System is operational to RoboTire’s standards.  RoboTire will use commercially reasonable efforts to repair any damage to Robotics to the extent caused during shipping or by RoboTire personnel during the installation process; provided that RoboTire will have no responsibility for any Uncovered Losses.  

• Training and Documentation.
  • Training.  RoboTire will provide end-user training to Customer staff, at time of installation, on appropriate operation of the RoboTire System, which shall consist of the training of the individuals appointed and made available by Customer, until training is completed, as mutually agreed upon by RoboTire and Customer, or a maximum period of 5 business days.   
  • Documentation.  Documentation, including training materials, will be made available to Customer upon installation of the RoboTire System.    

• Ongoing Issue Resolution.
  • Robotics.  Subject to Customer’s compliance with its obligations in the Terms and the Customer Agreement, in the event during the Subscription Term, through no fault of Customer, the Robotics or a component thereof malfunctions or otherwise ceases to operate substantially in accordance with the Documentation (a “Defect”), provided the Defect is not the result of Uncovered Losses, RoboTire will repair the affected component or replace the affected component with the then-current version of such component.  Notwithstanding anything else in the Terms or this Addendum, replacement of the Robotics containing the Defect, as described herein, shall be Customer’s sole remedy for a Defect. 
    
  • Third-Party Materials.  RoboTire will use commercially reasonable efforts to assist Customer in coordinating with the applicable third party provider to resolve any issues with Third-Party Materials.   
    
  • Updates and Fixes.  RoboTire may, from time to time and at its sole option, provide Updates and Fixes (as defined in the Agreement) to the RoboTire System, which Updates and Fixes shall be deemed part of the RoboTire System and be subject to the terms and conditions of the Agreement.  Providers of Third-Party Materials may also make Updates and Fixes available to Customer.  Customer has an affirmative obligation to install all Updates and Fixes in accordance with Section 4.6 of the Terms.  Customer acknowledges that failure to install Updates and Fixes in accordance with Section 4.6 of the Terms may result in additional Fees for ongoing issue resolution services performed by RoboTire.    

• Robotics Maintenance.
  • Day-to-Day Maintenance. Customer agrees to perform straight-forward, routine maintenance as described in the Documentation and the Terms.  At no additional charge, RoboTire will provide Customer will all guidance, training and information needed for Customer to reasonably carry out such routine maintenance.  Customer acknowledges that failure to perform required routine maintenance may result in delays and additional Fees for the periodic maintenance performed by RoboTire.    
    
  • Periodic Maintenance. RoboTire will perform all other required maintenance of the Robotics, as described in the Documentation, and RoboTire will provide all equipment, tools, and personnel necessary to complete such maintenance. 

• Excusable Delays and Failures
  • RoboTire will be excused from delays in performing, or from a failure to perform, hereunder to the extent that such delays or failures result from a Force Majeure Event. Without limiting the generality of the foregoing, Customer acknowledges that Customer’s (a) failure or delay in furnishing necessary information, equipment or access to facilities, (b) delays or failure caused by (i) Third-Party Materials, (ii) Customer Materials or (iii) Customer’s delay or failure to install updates and fixes made available by RoboTire or a third party provider of Third-Party Materials, or (c) delays or failure by Customer in completing tasks required of Customer or in otherwise performing Customer’s obligations hereunder or under the Agreement, will, in each case, be considered an excusable delay or excusable failure to perform hereunder and may impede or delay completion of the Support Services. Customer further acknowledges that such delays or failures may result in additional charges for the Support Services. 

• Service Levels 
  • “Available” or “Availability” means the total time that Customer can access the SaaS Services for live, real-time processing and data exchange, in accordance with the Documentation.   
    
  • The “Service Commitment” of the SaaS Services for a given calendar month is 99.9%, calculated on a 24-hour per day, 7-day per week basis, excluding Planned Maintenance, Emergency Downtime and Excluded Downtime.   
    
  • “Emergency Maintenance” means downtime of the SaaS Services outside of Planned Maintenance hours that is required in good faith to apply urgent Updates or Fixes. If Emergency Maintenance is required, RoboTire will immediately contact Customer via email and provide the expected start time, the planned or anticipated duration of the Emergency Maintenance, and whether RoboTire expects the SaaS Service to be unavailable during the Emergency Maintenance.   
    
  • “Excluded Downtime” means the following: (i) limitations or inability to use the SaaS Services by Customer which are the result of failures or processing delays of services which are not provided by RoboTire, including but not limited to telecommunications and internet service provider(s); (ii) delays or failures involving hardware, software or power systems not within RoboTire’s possession or control, including Customer’s systems and Third-Party Materials; (iii) distributed denial of service attacks, or processing delays in third party services accessed by the SaaS Services; and (iv) limitations or inability to use the SaaS Services caused by a Force Majeure Event (as defined in the Agreement).
    
  •  “Planned Maintenance” means the total minutes of planned maintenance during a month.  Planned Maintenance will occur only outside of business hours in the continental United States.  If actual maintenance occurs during business hours in the continental United States, such time will not be considered Planned Maintenance.  In the event RoboTire expects the Planned Maintenance activity to result in the SaaS Services being unavailable to Customer, RoboTire will provide Customer with minimum four (4) business days advance notification.  A scheduled Planned Maintenance may be changed with reasonable prior written notice to Customer. 

Availability Percentage:	Service Level Credit (Percent of Fees for the calendar month in which the failure(s) occurred):
≥ 99.0% and < 99.9%	2.5%
≥ 98.0% and <99.0%	5%
≥ 97.5% and <98.0%	7.5%
≥ 90.0% and <97.5%	10%
≥ 50.0% and < 90.0%	50%
< 50.0%	100%

• Service Level Credits 
  
  • In the event that the Availability of the SaaS Services falls below the Service Commitment, Customer shall be entitled to a credit against future Fees for the SaaS Service (each, a “Service Level Credit”), calculated on a monthly basis, as follows: 
    
  • Any such claim for Service Level Credits must be made within thirty (30) days of the end of the calendar month in which such failure occurred. 
    
  • Notwithstanding the foregoing Service Level Credits, RoboTire will use commercially reasonable efforts to minimize the impact or duration of any outage, interruption, or degradation of the SaaS Services and to avoid having same reoccur.  If Availability of the SaaS Services falls below 98.0% in any month, RoboTire will use all commercially reasonable efforts to restore Availability back to at least 99.9%. 
    
  • For all claims subject to validation by RoboTire, RoboTire will, acting diligently, transparently and in good faith, use log files, database records, audit logs, and any other information available to validate claims and make a good faith judgment on the applicability of Service Level Credits to said incident.  
    
  • If Customer submits one or more validated Service Level Credit claims in which the Availability Percentage was less than ninety-five percent (95%) in each of three (3) consecutive calendar months, Customer may terminate the Agreement with ten (10) days notice.  
    
  • Service Level Credits and Customer’s ability to terminate described herein shall be Customer’s exclusive remedies for any failure to meet the Service Commitment.   

• Email Support  
  • Email address: support@robotire.com
  • Availability: business days, 9am – 6pm Customer local time (U.S./Canada)