Pass Through MSA

Pass-Through Agreement and Conditions

These Pass-Through Terms and Conditions (this "Agreement") govern your access and use of the Products obtained through an Authorized Reseller (as defined below) and provided by EPIC iO Technologies Inc., a Delaware Corporation, having its principal place of business at 3463 Lakemont Blvd, Ste 104 B, Ft Mill, SC 29708 ("EPIC iO"). These Agreement are governed by and subject to the EPIC iO Standard Terms and Conditions of Sale (the "Ts and Cs", located at: https://epicio.com/terms-conditions-of-sale) and the EPIC iO End User License Agreement (the "EULA", located at: https://epicio.com/compliance-eula/), each as applicable, which are incorporated herein by reference. Capitalized terms used but not defined herein shall have the meaning set forth in the Ts and Cs or the EULA. If you are entering into these terms on behalf of a company or other entity, you represent that you have the authority to bind such entity and its affiliates to these terms.

This Agreement becomes binding and effective (the "Effective Date") at the earlier of: (1) when you first access, use or receive our Product (whether that's hardware, software, and/or support services), or (2) when you enter into an Order with an Authorized Reseller.

Definitions

  1. "Acceptable Use Policy" shall mean EPIC iO's policy with respect to the appropriate use of the Connectivity Services. The AUP is available on EPIC iO's website (https://epicio.com/support/acceptable-use-policy) and is hereby made a part of this Agreement and is subject to change without notice.

  2. "Authorized Resellers" shall mean the EPIC iO authorized reseller or managed service provider directly selling access the Products to you, and to which you will pay all Fees directly. Any additional Products shall be ordered by you directly from the Authorized Reseller. Authorized Resellers are not agents or representatives of EPIC iO; and EPIC iO accepts no responsibility for the actions or omissions of Authorized Resellers. Anyone gaining access or use of the Products are subject to this Agreement.

  3. "Documentation" shall mean all manuals, user documentation, technical information and other related materials, or portions thereof, pertaining to the Software, Hardware or Support Services furnished to Customer by EPIC iO in connection with this Agreement.

  4. "Confidential Information" shall mean all non-public and confidential information that is provided by discloser to recipient pursuant to this Agreement, including, but not limited to: i) trade secrets; ii) financial information, including pricing; iii) technical information, including research, developments, procedures, algorithms, data, designs, and know-how; and iv) business information, including operations, planning, marketing interests, and Products.

  5. "Connectivity Services" shall mean services provided by EPIC for the provision of wireless services for the transport of Customer data and financial transactions for authorization and settlement.

  6. "Customer Hardware" shall mean Customer-owned equipment and devices located or used in connection with the Software at or by Customer's network, facility or other applications.

  7. "EPIC Hardware" shall mean EPIC iO-owned equipment and devices furnished to Customer by EPIC iO pursuant to the terms of this Agreement, for use in Customer's network, facility or other applications.

  8. "Monthly Throughput" means the amount of data allocated and allowed for a particular Connectivity Service as more specifically provided in a quote.

  9. "Overage Charges" means the amount charged on Connectivity Services for all additional usage over Monthly Throughput limits as more specifically provided in a quote.

  10. "Software" shall mean EPIC iO's suite of software products, applications, features and associated documentation furnished by EPIC iO to Customer for use pursuant to the terms of this Agreement, and exclusively in connection with hardware, equipment and devices supplied by EPIC iO or one of its certified agents or resellers.

  11. "Third-Party Software" shall mean any software products, applications, features and associated documentation furnished that is not the intellectual property or components licensed from EPIC iO for use pursuant to the terms of this Agreement.

  12. "Order" shall mean the details regarding your Product purchase or subscription, including the number of users (if applicable) the Support Services offered, and Product details, as set forth in the ordering document between you and the Authorized Reseller. The Order will also include your address for notification.

  13. "Support Services" shall mean services provided by Authorized Reseller or EPIC iO to promote the continued function and operation of covered Customer Hardware, EPIC Hardware and Software during and in connection with this Agreement, as more fully defined in the attached Order, Support Services Documentation and the Service Level Agreements provided below.

Subscription, Grant of Rights

  1. EPIC iO agrees to furnish you access to the EPIC Hardware and Software (together the "Products") through an Authorized Reseller pursuant to the subscription or services terms defined in your Order with that Authorized Reseller. This subscription includes a limited, non-transferrable license to use the Products, subject to the EULA and the Ts and Cs, which license shall terminate upon your Reseller's notice of termination. This Agreement will remain active in accordance with the Order and will continue until we receive a notice of termination in accordance with the terms herein or in the case of the Authorized Reseller, the Reseller Agreement (as defined below).

  2. For the avoidance of doubt, (i) all Orders shall remain subject in all respects to the terms and provisions of this Agreement; (ii) the Term of each Order shall be based on the effective date of such Order, and (iii) this Agreement shall survive until the expiration or termination of all Orders.

  3. All intellectual property rights with respect to the Products and EPIC iO's name and trademarks, whether now existing or which may hereafter come into existence, which are not expressly granted to you are reserved to EPIC iO. Any goodwill generated through your use of EPIC iO's Products, name and trademarks shall inure solely to the benefit of EPIC iO. Except as set forth in this Agreement, you may not use EPIC iO's name or trademarks without EPIC iO's prior written consent.

  4. During the Term of this Agreement, you may provide EPIC iO with feedback related to the Products, including without limitation, comments, suggestions, proposals, or ideas (the "Feedback").  You agree that EPIC iO shall own all Feedback provided to EPIC iO and such Feedback shall be considered Confidential Information as defined in this Agreement.

  5. You shall use the Connectivity Services in accordance with the AUP. EPIC iO reserves the right to limit or suspend any data usage that violates the AUP, adversely impacts network performance or hinders access to the network.

  6. Chronic Connectivity Service issues preventing EPIC iO from meeting its Connectivity Service Level Agreements may require EPIC iO to release a Customer from the remaining term of that Connectivity Service after commercially reasonable efforts by EPIC iO to attempt to restore and/or repair Connectivity Services have failed.

  7. You will not modify, alter, decompile, disassemble, or sublicense the Products, except as expressly provided by this Agreement. All rights not expressly granted to you are reserved by EPIC iO.

  8. You shall comply with all Documentation and instructions with respect to the operation and use of the Products.

  9. You shall provide reasonable access to the Products for inspection and replacement. EPIC iO shall provide commercially reasonable notice prior to such inspection or replacement.

  10. You shall not create, incur, permit, or assume any lien on any Product for which you do not hold title.

Fee

  1. All costs, charges, and fees ("Fees") and payment terms with respect to the Products will be agreed between you and the Authorized Reseller and shall be paid in accordance with those terms directly to the Authorized Reseller. You acknowledge that the consideration for your use of the Products under this Agreement shall be paid to us directly by the Authorized Reseller pursuant to a separate agreement between EPIC iO and such Authorized Reseller ("Reseller Agreement").

Support Services

  1. During the Term and upon certification by the Authorized Reseller by EPIC iO to provide such services, the Authorized Reseller shall provide Support Services to you in connection with the covered Products, as defined and pursuant to the terms set forth in the attached Service Level Agreement, and as further defined by the Order.

  2. In the event you require that EPIC iO provide functions or services excess of those set forth on your Order, additional charges will apply.

Limited Warranty

  1. During the Term, and subject at all times to the limitations set forth in the EULA, EPIC iO warrants that the Products will substantially conform in all material respects with the Documentation (user manual, release notes, etc.). All warranty claims shall be made to Authorized Reseller and thereafter, Authorized Reseller shall communicate with EPIC iO regarding any claims of Product failure. Upon such notice, EPIC iO shall evaluate the Products upon notice provided by the Authorized Reseller and shall at EPIC iO's election and within the time periods defined in the Service Level Agreements, either replace or repair the Products to comply with the Documentation, or notify Authorized Reseller of our determination that the Products substantially conforms to the Documentation. This Limited Warranty does not extend to Customer Hardware or Third-Party Software. EPIC iO reserves the right to replace or upgrade Products at any time during the Term.

  2. The warranty described herein, in any Documentation, and in the EULA does not extend to damage caused by installation, mishandling, misuse, or for information security breaches, or damage to the Products not caused by EPIC iO. Except as specifically set forth in this Agreement the EULA and Ts and Cs, EPIC iO expressly excludes all other warranties express or implied, including any warranty of merchantability, noninfringement or fitness for any particular purpose. EPIC iO in no way warrants or guarantees that your purpose in using the Products will be achieved, including without limitation, as they may relate to food safety, disease prevention, public safety, prevention of illegal or illicit activity, or prevention of loss or damage to persons or property. Unless otherwise stated in writing, any warranties provided in the Documentation shall supersede and replace warranty terms provided in this Agreement or in the EULA.

  3. You shall be responsible for adhering to any usage guidelines laid out in the Documentation for each Product. EPIC iO shall not be liable for any claims arising from your failure to adhere to the terms and guidelines provided for in the Documentation in its use, operation, or deployment of any Products. If you have questions regarding a use of the Product in a manner not in conformance with the Documentation, you must first seek consent from EPIC iO, such consent to be granted solely in EPIC iO's discretion.

Title to Products; Delivery; Return; Damage

  1. At all times during and after the Term, unless expressly provided for by EPIC iO, the Products shall remain the sole and exclusive property of EPIC iO, and your right to possess and operate the Products shall be limited as set forth herein. Upon acceptance of Products, you assume all risk of loss, damage, theft or destruction of the Products, and from any causes including, without limitation, resulting from misuse, fault or neglect by you.

  2. Upon the expiration or any termination of this Agreement or Order, as applicable, you agree to immediately cease all use of the Products and return all Documentation and delete all backup copies associated thereof for all Products for which title was not transferred to you by EPIC iO. You shall also promptly return such Products to EPIC iO's address set forth above. In the event the Products are not returned within 15 days following the end of the applicable Term, or are damaged or destroyed while in your possession, you or the Authorized Reseller shall pay the replacement cost for each such Product.

  3. All EPIC Hardware shall be shipped F.O.B. (Incoterms 2020) from either Ceres, CA or Fort Mill, SC, freight prepaid, and invoiced to the Authorized Reseller for deliveries in the contiguous forty-eight (48) states of the United States of America. Alternative or additional terms may apply to deliveries to Alaska, Hawaii, Puerto Rico, and any orders outside of the United States. Title (of Products for which Title is intended to be transferred by EPIC) and risk of loss shall pass to Customer upon receipt by Customer, as evidenced by delivery confirmation of the carrier.

Termination

  1. Unless otherwise provided in an Order, any subscription created by this Agreement shall be non-cancellable and may not be terminated by either party during the Term, except in the case of a material breach by the other party, which remains uncured more than 30 days following receipt of written notice from the non-breaching party. Upon any termination of this Agreement by EPIC iO, you acknowledge that all fees due to EPIC iO for the entire Term of this Agreement shall become due and payable to EPIC iO immediately.

Indemnity

  1. Indemnity. You hereby indemnify and agree to defend and hold harmless EPIC iO and its affiliates, officers, employees and directors from and against any and all demands, claims, actions, proceedings, damages, liabilities, losses, fees, costs or expenses (including without limitation reasonable attorneys' fees and the costs of any investigation) directly or indirectly arising from or in any way connected with (i) use of or reliance on the Products supplied you under this Agreement in a manner not contemplated or approved by EPIC iO or the Documentation, (ii) any breach of or default under the terms or conditions of this Agreement by you, (iii) the use or possession of any Product by you or any third parties, except to the extent caused by EPIC iO's negligence or willful misconduct, (iv) your failure to adhere to usage terms or guidelines provide for in any Documentation for the Product(s), or (v) any negligence, gross negligence or willful misconduct by or on behalf of you or your employees or agents.

Limitation of Liability

  1. EXCEPT FOR YOUR INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, OR LOSS OF DATA, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. THE PARTIES' AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THIS AGREEMENT WILL BE LIMITED TO AN AMOUNT EQUAL TO THE SUM OF MONEY PAID BY CUSTOMER TO EPIC UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.

Confidentiality

  1. The receiving party shall protect the confidentiality and secrecy of the disclosing party's Confidential Information and shall prevent any improper disclosure or use thereof by its employees, agents, contractors or consultants, in the same manner and with the same degree of care (but in no event less than a reasonable degree of care) as it uses in protecting its own information of a confidential nature for a period of three (3) years from the date of such disclosure. Each party must inform its employees having access to the other's Confidential Information of restrictions required to comply with this Section 10. Each party agrees to provide notice to the other immediately after learning of or having reason to suspect a breach of any of the restrictions of this Section 10. Notwithstanding the foregoing, each party may disclose the other party's Confidential Information if and to the extent that such disclosure is required by applicable law, provided that the receiving party uses reasonable efforts to limit the disclosure and provides the disclosing party a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure.

  2. Each party retains for itself all proprietary rights it possesses in and to all of its own Confidential Information. Accordingly, Confidential Information which the disclosing party may furnish to the receiving party shall be in the receiving party's possession pursuant only to a restrictive, nontransferable, nonexclusive license under which the receiving party may use such Confidential Information under the terms of this Agreement, solely for the purposes of satisfying its obligations hereunder.

  3. Each party acknowledges that any material violation of the rights and obligations provided in this Section 10 may result in immediate and irreparable injury to the other party, and hereby agrees that the aggrieved party shall be entitled to immediate temporary, preliminary, and permanent injunctive relief against any such continued violations upon adequate proof, as required by applicable law. Notwithstanding Section 13(b), each party hereby submits itself to the personal jurisdiction of the courts of competent subject matter jurisdiction for purposes of entry of such injunctive relief.

Notices

  1. Any notice to a Party pursuant to this Agreement shall be deemed delivered upon the earlier of i) the receiving Party's acknowledgment of receipt; or ii) the third business day after delivery via a tracked delivery method. Notices to EPIC iO shall be sent to the address set forth above. Notices to you shall be delivered to the address set forth in your Order or sent to your Authorized Reseller.

Compliance with Laws

  1. Each party agrees, at its own expense, to operate in full compliance with all applicable laws, regulations, and requirements applicable to its obligations hereunder and to maintain in force all licenses, permits, and approvals required for its performance under this Agreement.

Miscellaneous

  1. No assignment or transfer of this Agreement by you shall be valid without EPIC iO's written consent.

  2. This Agreement shall be interpreted under the laws of the state of Delaware, and any proceeding to enforce or interpret this Agreement shall be brought before a court of competent jurisdiction in Charlotte, North Carolina.

  3. Publicity. You acknowledge and consents to EPIC iO's use of your name and non-economic details of the Products for promotional and training purposes. You may withdraw this consent by written notice to EPIC iO.

  4. Neither Party shall be liable hereunder for any failure or delay in the performance of its obligations under this Agreement, except for the payment of money, if such failure or delay is on account of causes beyond its control, including labor disputes, civil commotion, war, fires, floods, inclement weather, governmental regulations or controls, casualty, government authority, strikes, or acts of God, pandemics, epidemics, local disease outbreaks, public health emergencies, government imposed quarantines, in which event the non-performing party shall be excused from its obligations for the period of the delay and for a reasonable time thereafter. Each party shall use reasonable efforts to notify the other party of the occurrence of such an event within three (3) business days of its occurrence. If performance is delayed over thirty (30) days, the party not experiencing the delay may terminate this Agreement.

  5. This Agreement, Quotes and Orders, together with the EULA and Ts and Cs, contain the entire understanding and agreement between the parties respecting the subject matter hereof and supersedes all prior agreements and understandings, whether oral or written, in connection therewith. This Agreement may not be modified or amended except by written agreement of the Parties. All captions and headings in this Agreement are for purposes of convenience only and shall not affect the Construction or interpretation of any of its provisions. Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or a different kind.</li>