This Master License and Services Agreement (“MSA”) is entered by and between Tractian Technologies Inc., a corporation incorporated and existing under the laws of the State of Georgia, USA, with its principal place of business at 201 17th Street NW, 2nd Floor, Atlanta, GA, 30363, USA (“Tractian”); and (“Client”); collectively with Tractian, the “Parties”.
This Master License and Services Agreement, including the Licenses and Services Terms and any Exhibits attached hereto or subsequently agreed upon by the Parties (collectively referred to as this “Agreement”), outlines the terms and conditions under which the Client will access specific Tractian solutions and contract certain services provided by Tractian.
1. Definitions
- 1.1.“Affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with the relevant Party. For the purposes of this definition, “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such an entity, whether through the ownership of voting securities, by contract, or otherwise.
- 1.2.“Apps” means the software applications developed or provided by Tractian that run on mobile devices or desktop systems to enable access to Tractian’s industrial asset management tools.
- 1.3.“Authorized User” means an individual who is authorized to access and use Tractian’s software platform and related services.
- 1.4.“Customer Data” means information, data, or content provided, collected, or stored by the Client within the Tractian licensed software.
- 1.5.“Confidential Information” means any information disclosed by Tractian that is identified as confidential or that, by its nature, should be treated as confidential. This may include trade secrets, business plans, and other proprietary information not publicly available.
- 1.6.“Hardware” means the physical equipment necessary to operate Tractian’s software solutions such receivers, sensors, accessories, and other IoT devices integrated into Tractian’s industrial asset management platform purchased by the Client.
- 1.7.“License” means the permission granted by Tractian to the Client to use its software, typically subject to terms and conditions outlined in this MSA.
- 1.8.“License Expiration Date” means the later of (i) the license termination date set forth in the applicable Order Form ("Initial Term"), and (ii) if applicable to such Order Form the end of the then-active Renewal Term (as defined below).
- 1.9.“Normal Use Conditions” Means the normal use conditions outlined in the installation manual accompanying the sensors, which define the appropriate conditions under which the sensors can be used and are essential for their proper functionality, provided they are duly purchased under the order form.
- 1.10.“Order Form” means the quote executed by the Client that outlines the products, services, quantities, pricing, and terms agreed upon by the parties. It becomes an integral part of the main contract and serves as the basis for billing and delivery of services.
- 1.11.“Products” means the Hardwares.
- 1.12.“Services” means all the services offered by Tractian such as software licensing, and technical support.
- 1.13.“Tractian Software” means Tractian’s advanced asset management and predictive maintenance software designed for industrial operations, whose CMMS (Computerized Maintenance Management System) and condition monitoring platform enable companies to track equipment performance, automate maintenance workflows, and detect potential failures before they occur.
- 1.14.“Technical Visit” means the paid visit of Tractian’s team of Field Engineers to the Client’s plant for on-site support that may include installation assistance or hands-on training to ensure the correct implementation and usage of Tractian’s software and hardware solutions.
- 1.15.“Web-based Software” means the web-based software developed or provided by Tractian that enables access to Tractian’s industrial asset management tools.
2. Agreement to Terms
- 2.1.The Client hereby agrees to be bound by the terms and conditions set forth in this Master License and Services Agreement (MSA), including any and all Exhibits, schedules, or attachments hereto. By executing this MSA, both Parties acknowledge and accept the terms and conditions contained herein.
3. License
- 3.1.During the Term and subject to the terms and conditions herein, Tractian grants to Client a worldwide, non-sublicensable, non-exclusive, revocable, limited term license to use the Services and Products solely for the purposes of monitoring its assets and the health of its machines.
- 3.2.If purchased under the Order Form, Tractian grants the Client a non-exclusive and nontransferable license to use the Sensors in connection with the Services.
- 3.3.Feedback and Recommendations. Client hereby grants to Tractian a royalty free, worldwide, perpetual, and irrevocable license to use any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client including feedback shared with Client by its employees relating to the Software or Product.
4. Connectivity
- 4.1.For optimizing connectivity, Tractian will evaluate the mobile carrier availability for the designated location. Thereafter, Tractian will ship Receivers with the best coverage available for the region of the facility. While Tractian endeavors to provide optimal connectivity through careful selection, the actual connectivity may be affected by factors beyond Tractian's control, including carrier fluctuations, and regional disturbances.
- 4.2.To mitigate the potential effects of interruptions, Receivers are designed to hold up to one (1) day of backup sensor readings, ensuring that data is not immediately lost during short-term connectivity losses. The Client acknowledges that Tractian does not guarantee uninterrupted service and makes no warranties regarding the Receivers' always-on status due to external factors that might affect carrier networks.
5. Hardware Installation
- 5.1.If a Hardware is provided under the Order Form, the Client will receive the Installation Manual along with the Hardware for guidance during installation. The Client is responsible for the installation of the Hardware and the ongoing maintenance of any equipment into which the Hardware is installed. Improper installation of the Hardware or maintenance of the equipment into which the Hardware is installed may result in damage to such equipment, which could cause property damage.
6. Payments and Billing
- 6.1.Client’s payment and billing terms are set forth in the Order Form. Unless otherwise set forth herein or in the applicable Order Form, all payments made to Tractia under an Order Form are non-refundable. Client is responsible for all payments of applicable taxes, however designated or incurred under this Agreement.
- 6.2.In case of Implementation and Technical Visits, the total amount for this Service will be collected on the first invoice issued. In addition, the Client must cover related expenses for the Tractian team to perform the services in person at its headquarters.
- 6.3.Late Payment. Late payments will accrue interest monthly at the lower of 1.5% or the maximum rate permitted by law, chargeable from the date such payment was due until the date when Tractian receives payment in full. The failure to make any payment on or after the initial payment date agreed on and the following recurring date, will result in suspension of user access and licenses, and shall be considered a full and material breach of this Agreement.
- 6.4.Fees. Each Party shall bear all expenses relating to the delivery of its respective services related to this Agreement and each Party shall be responsible for and pay any and all applicable taxes, duties, tariffs, levies, withholdings and similar assessments resulting from its own activities under this Agreement.
7. Termination and Term
- 7.1.Term. The term of this Agreement begins upon the Effective Date and shall continue until the License Expiration Date for the last active Order Form or until otherwise terminated earlier as provided hereunder.
- 7.2.Termination for Cause. Either Party reserves the right to terminate this Agreement with thirty (30) days’ prior written notice to the other Party if any of the following events occur: (a) The other Party materially breaches this Agreement and such breach is incapable of being cured; or, in the case of a breach that is capable of cure, the breaching Party fails to cure such breach within thirty (30) days of receiving written notice of the breach; (b) The other Party becomes insolvent or admits its inability to pay its debts as they become due; (c) The other Party becomes subject, whether voluntarily or involuntarily, to any proceeding under domestic or foreign bankruptcy or insolvency law; (d) The other Party is dissolved or liquidated, or takes any corporate action for such purposes.
- 7.3Effect of Termination. Upon any termination or expiration of the Agreement, the following Sections of this Agreement will survive: 3.2.1. (Feedback), 6 (Payments and Billing), 7 (Termination and Term), 8 (Warranty), 11 (Proprietary Rights), 12 (Dispute Resolution), 13 (Governing Law), 14 (Confidentiality), 18 (Limitation of Liability), and 16 (General Provisions).
- 7.3.1.Upon Client’s request, Tractian will delete the accounts (together with all associated account data and Client data within the Product) within ninety (90) days unless otherwise required by applicable laws or governmental authorities.
- 7.3.2.Return of Hardware. Upon any termination or expiration of the Agreement, the Sensors and Receivers shall be returned to Tractian's principal place of business, unless otherwise waived from this right by Tractian, within thirty (30) days of termination. The freight must be pre-paid by the Client.
8. Warranty
- 8.1.Tractian warrants that, during the applicable term period, eligible Tractian Sensors or Receivers will not malfunction due to a defect in hardware materials or workmanship under Normal Use Conditions. Upon Tractian’s approval of a warranty claim provided in accordance with this warranty section, Tractian will, at its sole discretion, replace the hardware free of charge, in case of a manufacturing defect, each time it occurs.
- 8.2.Software Service Level Agreement (SLA). During the term of the applicable Order Form, the Software Service Level Agreement (SLA), described therein, will remain in full force and effect.
- 8.3.Warranties Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION AND ANY APPLICABLE SERVICE LEVEL AGREEMENT, THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND TRACTIAN EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT TRACTIAN DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE, OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY CUSTOMER FROM TRACTIAN OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS MSA. THE PARTIES ADDITIONALLY AGREE THAT TRACTIAN WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR CLIENT’S VARIOUS COMPLIANCE PROGRAMS, AND THAT THE SERVICES, TO THE EXTENT APPLICABLE, ARE ONLY TOOLS FOR ASSISTING CLIENT IN MEETING THE VARIOUS COMPLIANCE OBLIGATIONS FOR WHICH IT SOLELY IS RESPONSIBLE.
9. Publicity and Marketing
Tractian may use Client’s name, logo, press releases, earnings calls, trademarks, and marketing materials to identify Client as a client.
10. Limitation of Liability
- 10.1.TO THE EXTENT NOT PROHIBITED BY LAW, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SYSTEM FAILURE, HARDWARE FAILURE OR NETWORK OUTAGE, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES THAT RESULT FROM THIS AGREEMENT, EVEN IF SUCH PARTY OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- 10.2.TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL EITHER PARTY’S TOTAL AGGREGATE LIABILITY, INCLUDING TO OTHER PARTY OR ITS AFFILIATES, FOR ANY DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE PRODUCTS EXCEED THE AMOUNTS THE COMPANY HAS PAID HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
11. Proprietary Rights
Tractian will own and retain all right, title, and interest in and to the Tractian Software, the Product, and all derivatives, modifications, updates, and enhancements herein.
- 11.1.Hardware. The Sensors and Receivers are licensed, not sold - unless otherwise specified in the Order Form. Tractian retains ownership of the hardware itself, including all intellectual property rights therein. The hardware and its code are protected by United States copyright law and international treaties.
- 11.2.Tractian reserves all rights in the firmware, Web-based Software and Mobile Apps not expressly granted to the Client in this Agreement.
- 11.3.The Client acknowledges and agrees that the hardware, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Tractian.
- 11.4.Accordingly, the Client agrees not to disassemble, decompile or reverse engineer the hardware, in whole or in part, or permit or authorize a third party to do so.
12. Dispute Resolutions
Arbitration. Any dispute arising from or relating to this Agreement or Company's use of the Product that cannot be resolved by the Parties within a period of sixty (60) days after notice of a dispute has been given by one Party hereunder to the other, shall be finally and exclusively settled by confidential arbitration in Atlanta, Georgia, United States, using the English language in accordance with the Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Services, Inc. (“JAMS Rules”) then in effect, by one or more commercial arbitrator(s) with substantial experience in resolving complex commercial contract disputes. The Parties agree that such arbitrator(s) shall have full authority to award preliminary and permanent injunctive relief available in law.
13. Governing Law
This Agreement and any action related thereto will be governed by the laws of the State of Georgia without regard to its conflict of laws provisions. Exclusive jurisdiction and venue for actions related to this Agreement or the Company's use of the services will be the state and federal courts located in Georgia and both parties consent to the jurisdiction of such courts with respect to any such actions.
14. Confidentiality
The Parties agree to not reveal any information received under this Agreement without the prior written consent of either party, meaning a Confidentiality Commitment by the Parties of non-disclosure of information (NDA).
- 14.1.Client Data. Tractian agrees not to share the Company data. Additionally, Tractian agrees not to share any data or information that the Client provide to Tractian for the purpose of evaluating, procuring, or configuring the Services. Examples of such information include makes and models of the Client's assets or equipment, the machine configurations or maintenance data, work orders, insights, or similar information.
15. Data Privacy
Please refer to our Privacy Policy (www.tractian.com/en/privacy-policy) for general information on how Tractian collects, uses and discloses information from their users and account holders.
- 15.1.Usage Data. Tractian may collect and engage third-party analytics providers to collect Usage Data to develop new features, improve existing features, or inform sales and marketing strategies based on Tractian’s legitimate interest in improving the Services. When Tractian uses Usage Data, any Personal Data that was included in Service Data shall be encrypted, anonymized and/or aggregated in such a manner that it no longer constitutes Service Data or Personal Data under applicable data protection laws. Any such third-party analytics providers will not share or otherwise disclose Usage Data, although Tractian may make Usage Data publicly available from time to time.
- 15.2.Data Security Commitments. Tractian, duly holder of ISO 27001:2022 certificatio, will maintain the highest standards of security for the protection of Service Data. Tractian will ensure that all operations within Tractian's systems strictly adhere to established security protocols, aiming to preserve the integrity, confidentiality, and availability of Service Data in accordance with ISO standards. Additionally, Tractian will provide the customer immediate and direct access to its dedicated security team via email at [email protected].
16. General Provisions
- 16.1.Entire Agreement. This Agreement together with any amendments or addenda thereto and any applicable Order Form constitute the entire and exclusive understanding and agreement between Tractian and Client regarding the Products and Services, and this Agreement supersedes and replaces any and all prior oral or written understandings or agreements between Tractian and Client regarding the Products and Services. If there is a conflict between the terms of an Order Form and the terms of this Agreement, then the terms of the Order Form control over the terms of this Agreement. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in full force and effect.
- 16.2.Assignment. The Client may not assign or transfer this Agreement, by operation of law or otherwise, without Tractian’s prior written consent. Any attempt by the Client to assign or transfer this Agreement without such consent will be null and void. Tractian may freely assign or transfer this Agreement without restriction. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their successors, and permitted assigns.
- 16.3.Force Majeure. Tractian is not liable or responsible, nor shall be deemed to have defaulted under or breached this Agreement, for any failure to perform or delay in performing its obligations under this Agreement due to an event of force majeure. An event of force majeure is any event or circumstance beyond Tractian’s reasonable control, such as war, hostilities, act of God, earthquake, flood, fire, or other natural disaster, strike or labor conditions, material shortage, epidemic, disease, government action, or failure of utilities, transportation facilities, or communication or electronic systems.
- 16.4.Notices. Any notices provided under this Agreement must be made in writing. Notices to Tractian must be made via email to [email protected].