TERMS AND CONDITIONS

Last updated on June 28th, 2022

RailGuard ltd. Terms and Conditions

These Terms and Conditions (“Terms”) contain the terms and conditions that govern the provision of RailGuard device(s), as well as access to and use of RailGuard services, and form a binding agreement between the RailGuard entity identified on the Order (“we”, “us”, “our” or “Supplier”) and you or the entity you represent identified as the Customer on the Order (“you” or “Customer”). Such agreement takes effect as soon as Supplier confirms acceptance of the Order to you.

If the person placing the Order and accepting these Terms is doing so on behalf of a company or other legal entity identified as the Customer on the applicable Order, such person represents that he or she has the authority to bind the Customer to these Terms. If you do not have such authority, or if you or the Customer do not agree with these Terms, you must not accept these Terms and the Customer may not purchase or lease RailGuard device(s) and use the services.

1. Devices and SaaS Services

1.1. We provide multiple types of IoT hardware (devices): including, without limitation: [(i) PharmaGuard devices, (ii) RoomGuard devices, and (iii) RailGuard devices that are, including, but not limited to, capable of measuring temperature, humidity, air pressure, air quality, acceleration and positioning]. The devices include connectivity, power supply, data processing components and a cloud-based software for data logging and processing (“Devices”).

1.2. In connection with provision of Devices, we also provide web-based services in the form of Software as a Service (“Services”) that are accessed through our proprietary software applications (“Software”). The Devices and the Services are provided on a subscription basis for an indefinite term unless set out otherwise in your Order.

1.3. The Devices are equipped with installed software that is necessary for the correct functioning of the Services (the “Device Software”).

1.4. These Terms are hereby incorporated into each purchase and/or lease orders for the provision of the Devices and the Services (each an “Order”, collectively such Orders, together with these Terms, are the “Agreement”).

1.5. Individual Orders set out the subscription term, scope of the Services, fees and payments terms for the Services and any other specific terms with respect to the Devices and the Services. Orders may be placed by you and accepted by Supplier either electronically or in paper form.

1.6. If there is any conflict between an Order and these Terms, the terms in the Order shall prevail over the provisions of these Terms.

1.7. You may not use the Devices and the Services unless you are legally bound to these Terms.

1.8. You acknowledge that you are obliged to register correct information about you and correct payment details when you register with the Supplier. You also guarantee that all information you provided to the Supplier are true. You shall keep the information up –to date at all times.

2. Payments and taxes

2.1. The Devices and the Services are provided by Supplier for consideration (“Fees”). The Fees applicable to the provision of the Devices and the Services to you are stipulated in your Order. You may pay the Fees by invoice or by automatic credit card payment.

2.2. If you choose to pay for the Fees by invoice, Supplier will invoice you for the provided Devices and Services monthly and retrospectively. The first invoice issued to you will be for the provision of the Devices and/or the Services for the first full month following delivery, regardless of whether or not the Devices and Services have been activated and used by you. Each invoice is issued at the beginning of the following month and it is sent to you by e-mail.

2.3. The invoices are payable within 7 days through your own bank or online with a credit card through Supplier’s payment service. Payment obligations are non-cancellable and Fees paid are non-refundable, and quantities purchased cannot be decreased during the subscription term.

2.4. If the Agreement is terminated by Supplier or you for any reason or without any reason with three months' notice pursuant to Section 12.4 of the Terms, one invoice for the provision of the Devices and the Services will be issued to you for the last three months of provision of the Devices and/or Services at the beginning of the month following the month of the notice of termination.

2.5. If you decide to pay the Fees by automatic credit card payment, you will be required to:

2.5.1. pay for the first full month of the provision of the Devices and/or the Services within 7 days from the end of the first full month following delivery of these Devices and/or Services, and

2.5.2. set up the autopay by credit card for following months of the provision of the Devices and/or Services so that we receive the payment for each month at the beginning of the following month.

2.6. If you no longer wish to use automatic credit card payments, it is your responsibility to cancel the automatic credit card payments.

2.7. If the Agreement is terminated by us or you for any reason or without any reason with three months' notice pursuant to Section 12.4 of the Terms, and you pay the Fees by automatic credit card payment, the Fees for the remaining subscription period shall become payable in full upon termination and any outstanding amounts shall be paid at the beginning of the month following the month of termination notice.

2.8. Fees quoted in your Order exclude any and all applicable taxes, levies, duties or similar governmental assessments of any nature and similar fees (other than now in force or imposed in the future on provision of the Devices and the Services, including any sales, use or value added taxes, services tax or withholding tax, and you shall be responsible for payment of all such taxes and fees.

2.9. If any undisputed invoiced amount is not received by us by the due date, then without limiting our rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.

2.10. No party shall have any right of holdback or set-off against any claims of the other Party under or in connection with the Agreement

2.11. Throughout the entire term of the Agreement, the Fees will be subject to adjustments to be implemented annually, as of each 1 January. The Rent will increase at all times by the higher of: (i) 3%; or (ii) 100% of the increase of the value of the Inflation Index (as defined below) for the preceding calendar year. In the event of an increase, we will inform you of the new amount of the Fees as soon as possible following the publication of the relevant index. You agree to pay the increased Fees effective as from 1 January of the respective year (i.e., even in arrears). Any adjustments of the Fees pursuant to this clause shall remain in effect until a new increase of Fees occurs in the manner described above. For purposes of the Agreement, the expression Inflation Index means the Harmonized index of consumer prices expressed through an increase to the average index of consumer prices (HICP) valid for the Euro zone in the preceding calendar year. If the Inflation Index is no longer published, Supplier will determine at its own discretion a comparable index based on changes in the costs of living or in the purchase power for consumer goods in countries using the EUR currency. Any reduction of the Fees resulting from a change in the Inflation Index is excluded.

2.12. We are not responsible for payment processing provided by any third party.

3. Warranties; Exclusions

3.1. Except as expressly stipulated otherwise in these Terms and without prejudice to your statutory rights, the Devices and the Services are provided “as is” and Supplier, its subsidiaries and affiliates, and its licensors give no warranty with respect to them. Supplier is not liable or responsible for the Devices or the Services malfunctions due to:

3.1.1. factors outside Supplier's reasonable control, such as a Force Majeure Events (events outside Supplier's reasonable control and not involving the Supplier's fault or negligence and not foreseeable, such events may include, but not limited to hacking attempts, browser errors, colling unit breakdowns, natural disaster, fires, floods, epidemics, quarantine restrictions, acts of terrorism, war, revolutions, government action, riots, or freight embargoes);

3.1.2. incident on circuits or network elements;

3.1.3. unauthorized action or lack of action when necessary from your side, including, but not limited to, your responsible representatives, employees, agents, contractors, or vendors, or anyone gaining access to your Devices or Services.

4. Your use of the Services

4.1. To access the Services, you will be required to register on the Supplier’s platform and provide identification, contact or similar details as part of the registration process for the Services or as part of your continued use of the Services.

4.2. You agree to use the Services only for purposes that are permitted by (A) the Terms; (B) any applicable law, regulation, generally accepted practices, or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the EU, the United States or other relevant countries); and (C) the Set-Up Manual as defined in Section 9.5 of these Terms, Maintenance manual as defined in Section 10.1 of these Terms and Technical limitations of Devices as defined in Section 10.2 of these Terms.

4.3. You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services). In particular, you agree not to engage in the following acts or cause or permit others to do so:

a) use the Services or any related data (as defined below) to violate applicable law or the Terms;

b) permit a third party to access the Services without the approval of the Supplier;

c) sell, resell, rent, lease, distribute, assign or otherwise transfer the rights to the Services;

d) modify, translate, or create derivative works of the Services except as permitted by Supplier;

e) use Services for timesharing or service bureau purposes or otherwise for the benefit of a third party;

f) remove, obscure or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained in the Services or their outputs;

g) copy, modify, or create derivative works based on any data from the Services without written consent from the Supplier;

h) copy, frame, or mirror any part or content of the Services except as permitted in writing by Supplier;

i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services or Software;

j) access the Services in order to build a competitive product or service, or copy any features, functions or graphics of the Services;

k) create any link to the Services or frame or mirror the content contained on, or accessible from, the Services;

l) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;

m) use the Services to knowingly upload, store, transmit or distribute material containing software viruses, worms, Trojan horses or other malicious code, files, scripts, agents or programs that may damage the operation of the Services or third-party’s computer, property of information;

n) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein;

o) perform any simulated attack, penetration test, denial of service simulation or similar vulnerability test or scan of the Services; or

p) attempt to gain unauthorized access to the Services or their related systems or networks or unauthorized access to a third-party account or content created by or for another Supplier’s customer.

4.4. The Services may be used by you only for your own internal business purposes. You may not use the Services for the benefit of any third parties not explicitly listed in the Order or otherwise approved by Supplier.

4.5. You agree that you will not engage in any activity that may amount to the misuse of the Services or that seeks to circumvent the Services’ terms. For example, if Supplier provides you with any portion of the Services as part of a trial, proof of concept (POC) or pilot, you may not engage in data mining or other excessive use of that portion of the Services, beyond what is permitted by the trial, POC or pilot of the Services (and as advertised for that portion of the Services at the time of the relevant promotion). Supplier reserves the right to limit your activity on any of its trial, POC or pilot Services for any reason and without notice.

4.6. You agree that you are solely responsible for (and that Supplier has no responsibility to you for) any breach of your obligations under the Agreement and for the consequences (including any loss or damage which Supplier may suffer) of any such breach by you. You are responsible for all acts and omissions of each individual end-user that you permit to use the Services.

4.7. You acknowledge that use of the Services in breach of this Section 4 of these Terms will be considered a material breach of the Terms, with all consequences resulting therefrom.

4.8. You agree and understand that you and your end-users are responsible for maintaining the confidentiality of passwords or other login credentials associated with any account you use to access the Services. Accordingly, you agree that you will be solely responsible for all activities that occur under your account.

5. Proprietary rights

5.1. You acknowledge and agree that the Supplier (or Supplier's licensors) owns all legal rights, title and interest in and to the Services, the Software and the Device Software, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist).

5.2. These Terms are not a work made-for-hire agreement with regard to either party. Subject to the limited rights expressly granted hereunder, we reserve all rights, title and interests and all related intellectual property rights in and to the Services and any and all underlying Software, including modifications and derivatives created by us, databases, including data models, structures, data and aggregated statistical data contained therein. Unless you have been expressly authorized to do so in writing by Supplier, you agree that, in connection with the Services, you will not use any trademark, service mark, trade name, logo of any third-party company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.

6. License from Supplier to use the Software and the Equipment

6.1. Supplier grants you a worldwide, royalty-free, non-assignable and non-exclusive right and license to access and use the Services, on a subscription basis, for the subscription term. Any Services unused during your subscription term shall expire at the end of the subscription term and cannot be transferred to consecutive terms or be refunded.

6.2. The license granted in this Section 6 of these Terms is for the sole purpose of enabling you to use and enjoy the benefits of the Services as provided by Supplier, in the manner permitted by these Terms (in particular Section 4 of these Terms) and the Order. You may not use the Services for the benefit of any third parties without prior written consent of the Supplier. You acknowledge that this is a SaaS (Software as a Service) and EaaS (Equipment as a Service) agreement and that (A) neither the Software nor the Devices aresold to you, and (B) we will not be delivering copies of the Software to you as part of the Services.

6.3. Unless Supplier has given you specific written permission to do so or as permitted by Section 16.7 of these Terms, you may not assign (or grant a sublicense of) your rights, grant a security interest in or over your rights, or otherwise transfer any part of your rights granted hereunder.

6.4. You acknowledge that any breach of Section 6 of these Terms by you or your end-users shall constitute a material breach of the Terms, with all consequences arising therefrom.

7. License from Supplier to use the Device Software

7.1. The Devices provided to you contain Device Software that is necessary for the functioning of the Devices and the Services in general. Supplier grants you a worldwide, royalty-free, non-assignable and non-exclusive right and license to use the Device Software in connection with the Devices and your use of the Services.

7.2. The limitations set out in Sections 4.2 through 4.5 of the Terms shall apply mutatis mutandis to the Device Software.

8. License to Data

8.1. Transferred Customer's data and any other Customer’s content remains the Customer’s ownership. You acknowledge that the Supplier may use, collect, store and otherwise process any data and any other content within the Services for the purpose of providing, , enhancing, developing or improving the Services, offering new services or service features, and providing anonymized analytics to third parties. You may use and otherwise process the Services data and any other Services content for your own purposes.

8.2. You and the Supplier shall hereby grant each other a non-exclusive, irrevocable, royalty-free, perpetual (limited only by the duration of the protection of the proprietary rights pertaining to the data and any other content), worldwide and otherwise unlimited license to the use of such data or any other content, including, without limitation, the right to modify, alter, and adapt the data or any other content, combine it with or include it in another data or any other content.

9. Device lease or purchase

9.1. Devices provided to you by Supplier are either leased or sold to you by the Supplier. The specific arrangement regarding the delivery of the Devices will be determined in your Order.

9.2. The Supplier shall bear the risk of loss of, destruction of, or damage to the Devices until they are delivered to the place of delivery stated in the Order. The Supplier shall send the Devices to you using a delivery service chosen by the Supplier and pay for shipping. You are responsible for ensuring that the Devices are received correctly and in accordance with the Order. The specific arrangement regarding the delivery of the Devices will be determined in your Order. Thereafter, you assume the risk of loss of, destruction of, or damage to the Devices.

9.3. If the Devices are leased to you by the Supplier, the Devices remain the property of the Supplier or a third-party provider. You may not sell, rent donate or otherwise transfer or dispose of the Devices or any rights related to the Devices.

9.4. If the Devices are sold to you, the Devices remain the property of the Supplier until full payment of the purchase price. In the event of a purchase price dispute, you are required to return the Devices concerned to the Supplier immediately upon the Supplier’s request.

9.5. To use the Devices, you need to set it up according to the Set-up manual that is attached as Annex 1 to these Terms (“Set-up manual”). Supplier does not assume any liability for any errors in the Device functioning if the Devices are not set up exactly according to the Set-up manual.

9.6. Upon termination of the Agreement, you are required to return the leased Devices to the Supplier at its own expense. Unless otherwise agreed between you and the Supplier, the Devices shall be returned at the place of the Supplier's registered office. If you fail to comply with your obligation specified in this Section, you shall pay a contractual penalty amounting to 10% of the then applicable monthly subscription fee for each day when the breach of this obligation continues.

9.7. The limitations set out in Sections 4.2 through 4.5 of the Terms shall apply mutatis mutandis to the Devices.

10. Maintenance

10.1. You are obliged to maintain the Devices correctly according to the Maintenance manual that is attached as Annex 2 to these Terms (“Maintenance manual”).

10.2. You acknowledge that the Devices have certain technical limitations specified in the document entitled Technical limitations of Devices that is attached as Annex 3 to these Terms (“Technical limitations of Devices”). You are required to read carefully Technical limitations of Devices before using the Devices. You acknowledge, including, but not limited to, the following:

10.2.1. the Devices are operated in accordance with all instructions and documentations supplied by the Supplier (including Set-up manual, Maintenance manual and Technical limitations of Devices);

10.2.2. you are obliged to have properly maintained all associated equipment, Software and environmental conditions in accordance with applicable specification, industry standards and all instructions and documentations supplied by the Supplier (including Maintenance manual and Technical limitations of Devices);

10.2.3. you are responsible for ensuring the correct setting of alarms and threshold values in accordance with applicable specification, industry standards and all instructions and documentations supplied by the Supplier (including Maintenance manual and Technical limitations of Devices);

10.2.4. you are not entitled to introduce other equipment or software creating an adverse impact on the Devices;

10.2.5. you are responsible for having a local backup routine, as required, by applying the export functionality in the Software;

10.2.6. you are not entitled to make any unauthorized repair attempts to the Devices.

10.3. You acknowledge that use of the Devices in breach of this Section 10 will be considered a material breach of the Terms, with all consequences resulting therefrom.

11. Customer support, repair and service availability

11.1. The Supplier shall use commercially reasonable efforts to make the Services available to you 99.5% of the time 24 hours, 365 days a year.

11.2. Any customer support requests are to be sent to the e-mail address Service@synapiot.com.

11.3. The Supplier shall start handling your requests for support and/or error correction as quickly as possible (usually within two working days) upon having received your request for support and/or error correction. Support procedures and error correction procedures take place on working days between 9 a.m. and 5 p.m. CET.

11.4. In connection with support and error correction procedures, you are obliged to provide full cooperation to the Supplier.

11.5. If the problem is caused by errors or defects in the hardware, you are responsible for packing and returning the defective Devices to the Supplier. The Supplier shall provide you with replacement Devices as quicky as possible. If the replacement Devices is not available in stock, this may imply longer delivery times and you shall be notified hereof by email. The shipment for the defective and replacement Devices shall be paid by Supplier.

11.6. If the error is caused by your incorrect handling of the Devices, the Supplier shall not be liable to correct the error. If the Devices are damaged by you, you shall be responsible for paying for the repair or replacement. Supplier shall have the right to decide in its free discretion whether to repair or replace a Device, and to determine the related cost, which shall however not exceed 12 times the then applicable monthly subscription fee.In order to provide a high-quality Services and to repair errors or defects in the hardware and Software as quickly as possible, the Supplier monitors the Devices and the Software remotely. You acknowledge and agree that the remote monitoring may cause a change of your stored data in the Software.

11.7. Supplier is constantly innovating the Services to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services may change from time to time without prior notice to you as long as such change does not result in material degradation of the Services.

12. Ending your relationship with the Supplier

12.1. Your relationship with the Supplier is for an indefinite term.

12.2. Each party may only terminate the Agreement for reasons stipulated in Section 12.3 of these Terms without notice.

12.3. Each of the parties may at any time terminate the Agreement without notice if (A) the other party has materially breached any provision of the Agreement and failed to cure the breach (where such breach is capable of being cured) within a reasonable cure period provided by the other party, or has acted in a manner which clearly shows that it does not intend to or is unable to comply with the terms of the Agreement; or (B) a party is required to do so by law (for example, where the performance of the Agreement is or becomes unlawful); in addition, Supplier may at any time terminate the Agreement if (C) Supplier is transitioning to no longer providing the Services to users in the country in which you reside or from which you use the Services; (D) the provision of the Services to you by Supplier is, in Supplier's opinion, no longer commercially viable; (E) you breach your confidentiality obligation stipulated in Sections 15.1, 15.2 and 15.3 of these Terms; (F) you are insolvent, bankrupt, or you go into liquidation or the Supplier may reasonably assume that you are insolvent, bankrupt, or you go into liquidation or the competent authorities file a petition in this respect. For the purposes of the Agreement, your failure to make timely payments under the Agreement will be considered a material breach of the Agreement if the due amount remains unpaid (fully or partially) more than 30 days after the payment due date. In the event you terminate the Agreement for a material breach by Supplier as described in (A) above, or if Supplier ceases to provide any part or all of the Services during the Agreement term for reasons stipulated in (C), (D), (E) and (F) above, you shall not be required to make any payments for the provision of Device and/or Services beyond the date of when you terminated the Agreement or when Supplier ceased to provide the Services (as applicable).

12.4. Where Supplier has the right to terminate the Agreement without notice, Supplier may at its sole discretion decide to suspend the provision of Services to you for a period of up to [6] months, during which period you shall remain liable to pay for the provision of Devices and/or Services. This shall not affect the Supplier's right to terminate the Agreement without notice at any time, or to claim damages or a contractual penalty pursuant to the Agreement.

12.5. In the event that you commit a material breach of the Terms, Supplier shall have the right to claim a contractual penalty of EUR 10,000 (in words: ten thousand Euro) from you. This shall not affect the Supplier's right to suspend the provision of Services to you, to terminate the Agreement without notice at any time, or to claim damages.

12.6. Each of the parties may at any time terminate the Agreement for any reason or without any reason with three months' notice beginning on the first day of the month following the day of the delivery of the written notice to the other party and ending on the last day of the relevant month.

12.7. When the Agreement ends, all of the legal rights, obligations and liabilities that you and Supplier have benefited from, been subject to (or which have accrued over time whilst the Agreement has been in force) and/or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of Section 16.7 of these Terms shall continue to apply to such rights, obligations and liabilities indefinitely.

12.8. Further, you understand and agree that if you, despite the termination of the Agreement for any reason, continue using the Services, the terms and conditions of the Agreement (including the payment terms) will continue to apply, and you undertake to pay for the use of the Devices and/or the Services by you in accordance with the agreed payment terms.

13. Indemnification

13.1. We will defend any action brought by a third party against you to the extent that the action is based on a claim that Devices and/or Services provided by Supplier to you, and as used within the scope of these Terms, directly infringes such third party’s intellectual property rights, and we shall hold you harmless from any liability for any costs and damages ordered by a court as a result of such action or resulting from a monetary settlement thereof, provided that (A) you notify us promptly in writing of the action (and all prior claims relating to such action), (B) we are given sole control of the defense and all negotiations for settlement or compromise of the action provided it releases you of all liability, and (C) you reasonably cooperate with us in such defense, including without limitation making available to us all relevant documents and other information in your possession and by making your personnel available to testify or to consult with us or our attorneys.

13.2. You shall defend us against any claim, demand, suit or proceeding made or brought against us by a third party alleging that your use of the Devices and/or the Services is in breach of these Terms, infringes or misappropriates the intellectual property rights of a third party or violates applicable law. You shall indemnify us for any damages, attorney fees and costs incurred in connection therewith; provided we promptly give you written notice of the claim, demand or notice of suit or proceeding brought against us (provided that you may not settle the claim against us unless it releases us of all liability) and provide you with reasonable assistance at your expense.

13.3. We will have no liability or obligation with respect to any infringement or misappropriation claim based upon: (A) any use of the Devices and/or the Services not in accordance with the Agreement or for purposes not intended by us, (B) any use of the Devices and/or the Services in combination with other products, equipment, software or data not supplied by us, (C) any modification of the Devices and/or the Services made by any person other than us where such modification is not authorized by us, or (D) any use of the Devices and/or the Services other than the most current version made available to you.

13.4. If the Devices and/or the Services are likely to become the subject of an infringement or misappropriation claim, we may, at our sole option and expense, either: (A) procure for you the right to continue to use the said Devices and/or Services pursuant to these Terms; or (B) replace or modify said Devices and/or Services to make them non-infringing; or (C) terminate the applicable Order and your right to use the Devices and/or the Services. SECTIONS 13.1, 13.3 AND 13.4 OF THESE TERMS STATE OUR ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT AND MISAPPROPRIATION CLAIMS AND ACTIONS BASED ON ANY SERVICES OR PRODUCTS PROVIDED BY US.

14. Limitation of liability

14.1. Nothing in the Agreement shall exclude or limit Supplier's liability for losses which may not be lawfully excluded or limited by applicable law.

14.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHATEVER THE LEGAL BASIS FOR THE CLAIM, SUPPLIER WILL NOT BE LIABLE FOR ANY INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES), DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, SUPPLIER’S PERFORMANCE OR FAILURE TO PERFORM.

14.3. Except for liabilities arising out of Supplier’s breach of the obligations of confidentiality under Section 15 of these Terms and Supplier’s indemnification obligations hereunder, Supplier's liability for damage incurred by you as a result of or in connection with the Services shall be limited to direct damages and shall not exceed the amount paid or payable by you to Supplier for the Services giving rise to that liability during the last twelve months before the occurrence of Supplier's liability (or amount corresponding to a twelve-month Service fee, as applicable). The parties agree that this limitation reflects the damage that can be foreseen at the time of conclusion of the Agreement between you and Supplier, taking into account all circumstances the parties know or should know while exercising due care and that can arise from a breach of Supplier’s obligations under these Terms.

15. Confidentiality

15.1. Definition of Confidential Information. As used herein, “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure. Except as expressly authorized, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. However, Confidential Information shall not include any information that (A) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (B) was rightfully in its possession or known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (C) is rightfully received by a third party without breach of any confidentiality obligation; (D) was independently developed by employees of Receiving Party; or (E) is required to be disclosed in order to enforce these Terms or pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance written notice to the Disclosing Party to the extent legally permitted).

15.2. Both Parties hereby agree, during the term of the Agreement and for a period of three years thereafter, to maintain as confidential all material, non-public Confidential Information, which it learns about the Disclosing Party as a result of its respective performance under these Terms and, except as may be required by applicable law or regulation, to refrain from disclosing any Confidential Information to any third party and to disclose such Confidential Information only to those agents, employees, representatives and professional advisors of the Receiving Party and/or its affiliates who have a need to know such Confidential Information for purposes of the Agreement.

15.3. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

16. General provisions

16.1. The Agreement constitutes the entire agreement between you and the Supplier and govern your use of the Devices and/or the Services (excluding any services which the Supplier may provide to you under a separate written agreement), and completely replace any prior agreements between you and the Supplier in relation to the Devices and the Services.

16.2. All notices, requests, consents, claims, demands, waivers and other communications between the Supplier and you shall be in writing and addressed to the parties at their e-mail addresses set forth on the face of the Order, unless otherwise agreed by parties.

16.3. Each party hereby waives any right to a jury trial in connection with any action or litigation in any way arising out of or related to these Terms and/or any Order concluded under these Terms.

16.4. Except for performance of a payment obligation, neither party will be responsible for any failure to perform or delay in performing any of its obligations under the Terms where and to the extent that such failure or delay results directly or indirectly from Force Majeure Event.

16.5. The parties agree that if one of them does not exercise or enforce any legal right or remedy which is contained in the Terms (or which such party has the benefit of under any applicable law), this will not be taken to be a formal waiver of such party’s rights and that those rights or remedies will still be available to it.

16.6. If any court of law, having the jurisdiction to decide on this matter, rules that any provision of the Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.

16.7. The Agreement, and your relationship with the Supplier under the Agreement, shall be governed by, and construed and enforced in accordance with, the laws of the Czech Republic, and the parties agree to submit to the jurisdiction of the courts of the Czech Republic to resolve any legal matters arising from the Terms. Neither Party may assign any of its rights nor delegate any of its duties under these Terms without the prior written consent of the other Party, which consent will not be unreasonably withheld. Any unauthorized assignment of these Terms will be null and void. Notwithstanding the foregoing, either party may assign these Terms in its entirety (including Orders, Annexes), without consent of the other Party, to the acquiring person in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party. A Party’s sole remedy for any purported assignment by the other Party in breach of this Section shall be, at the non-assigning Party’s election, termination of the Order and these Terms upon written notice to the assigning Party. Subject to the foregoing, these Terms shall bind and inure to the benefits of the Parties, their respective successors and permitted assigns.

16.8. Annexes to these Terms are hereby incorporated into these Terms and binding on both parties.

Annex 1 – Set-Up Manual;

Annex 2 – Maintenance Manual; and

Annex 3 – Technical Limitations of Devices.