This GovCloud Master License and Services Agreement (“MSA”) is entered into 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 in Atlanta, Georgia (“Tractian”), and the contracting party identified on the applicable Order Form (“Client” and, collectively with Tractian, the “Parties”).
This MSA, together with each applicable Order Form, any License and Services Terms contained therein, and any exhibits or other terms incorporated by reference, constitutes the agreement between the Parties regarding the applicable Products and Services (“Agreement”).
This MSA applies solely to Products and Services expressly identified in an Order Form as Tractian GovCloud, GovCloud, FedRAMP High, or another Tractian government cloud offering.
1. Definitions
1.1. Affiliates
“Affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party. “Control” means the direct or indirect power to direct the management or policies of an entity, whether through ownership, contract, or otherwise.
1.2. Apps
“Apps” means software applications developed or provided by Tractian for mobile devices or desktop systems that provide access to Tractian’s industrial asset management tools.
1.3. Client Data
“Client Data” means data provided by or on behalf of Client to Tractian in connection with the Services or applicable business purpose, including Personal Data contained therein.
1.4. Confidential Information
“Confidential Information” means non-public information disclosed by either Party that is identified as confidential or that reasonably should be understood to be confidential based on its nature or the circumstances of disclosure.
1.5. GovCloud Client Data
“GovCloud Client Data” means Client Data processed, stored, transmitted, or otherwise handled through the GovCloud Services.
1.6. GovCloud Services
“GovCloud Services” means those Products and Services expressly identified in an applicable Order Form as being provided through Tractian’s GovCloud environment.
Where an Order Form expressly identifies Services as “FedRAMP High,” such designation applies only to Products, Services, infrastructure, features, and components included within the applicable Tractian FedRAMP High authorization or assessment scope.
No Product, Service, integration, feature, or component will be considered within such scope unless expressly included in the applicable GovCloud offering.
1.7. Hardware
“Hardware” means physical equipment used with Tractian’s software solutions, including receivers, sensors, accessories, gateways, and other IoT devices provided to Client.
1.8. Hosted Software SLA
“Hosted Software SLA” means Tractian’s Hosted Software Service Level Agreement available at https://tractian.com/en/service-level-agreement.
For GovCloud Services governed by this MSA, any reference in the Hosted Software SLA to the Tractian Master License and Services Agreement will be deemed to refer to this GovCloud MSA.
1.9. License
“License” means the permission granted by Tractian to Client to use applicable Products and Services subject to this Agreement.
1.10. License Start Date
“License Start Date” means the beginning of the applicable license term, occurring upon the release of users and/or delivery of applicable devices, as specified in the Order Form.
1.11. License Expiration Date
“License Expiration Date” means the later of (i) the license termination date stated in the applicable Order Form and (ii) the end of any then-active Renewal Term.
1.12. Normal Use Conditions
“Normal Use Conditions” means the operating and environmental conditions specified in the applicable Hardware installation manual.
1.13. Order Form
“Order Form” means a quote or ordering document executed or accepted by Client describing the Products, Services, quantities, pricing, and applicable commercial terms.
1.14. Products
“Products” means the Hardware and Tractian Software.
1.15. Services
“Services” means services offered by Tractian, including software licensing and technical support.
1.16. Technical Visit
“Technical Visit” means a paid visit by Tractian personnel to a Client facility for installation assistance, training, implementation, or other on-site support.
1.17. Tractian Software
“Tractian Software” means Tractian’s industrial asset management, maintenance, condition monitoring, analytics, and related software.
1.18. Web-based Software
“Web-based Software” means web-based software developed or provided by Tractian through which Client accesses Tractian’s industrial asset management tools.
2. Agreement to Terms
2.1.
Client agrees to be bound by this MSA and all applicable Order Forms, exhibits, schedules, and terms expressly incorporated herein.
By entering into an applicable Order Form, the Parties acknowledge and accept the terms of this Agreement.
3. License
3.1.
During the Term and subject to this Agreement, Tractian grants Client a worldwide, non-sublicensable, non-exclusive, revocable, limited-term license to use the Products and Services for Client’s internal operations, including monitoring assets, managing maintenance activities, and monitoring the condition and health of machinery.
3.1.1.
Use of Tractian Software is also subject to Tractian’s Platform Terms of Use available at https://tractian.com/en/policies/terms-of-use, which are incorporated into this Agreement by reference.
If the Platform Terms of Use conflict with this MSA, this MSA will control with respect to GovCloud Services.
3.2.
If applicable under an Order Form, Tractian grants Client a non-exclusive and non-transferable license to use Sensors and other licensed Hardware in connection with the Services, subject to Section 11.
3.3. Feedback and Recommendations.
Client grants Tractian a royalty-free, worldwide, perpetual, and irrevocable license to use suggestions, ideas, enhancement requests, feedback, recommendations, and other feedback voluntarily provided by Client concerning the Products and Services.
For clarity, this Section does not grant Tractian any right to use GovCloud Client Data for model training or other purposes prohibited by Section 13.3.
3.4.
Client is responsible for monitoring, administering, controlling access to, and protecting accounts used by Client and its authorized users to access the Tractian Software, Web-based Software, and Apps (“Client Accounts”).
Client is responsible for protecting credentials and login information and must promptly notify Tractian of suspected unauthorized access.
4. Connectivity
4.1.
Where cellular connectivity is used, Tractian may evaluate available mobile carriers for the applicable facility and provide Receivers using coverage appropriate for that region.
Connectivity may nevertheless be affected by circumstances outside Tractian’s control, including carrier availability, signal conditions, network disruptions, and regional disturbances.
4.2.
Where applicable, Receivers may provide local storage intended to reduce data loss during temporary connectivity interruptions.
Client acknowledges that Tractian does not guarantee uninterrupted cellular or network connectivity and is not responsible for outages or performance issues caused by external carrier, network, or telecommunications conditions.
5. Hardware Installation and Worksite Safety
5.1.
If Hardware is provided under an Order Form, Tractian may provide an applicable installation manual.
Where Client performs installation, Client is responsible for proper installation and ongoing maintenance of the equipment on which the Hardware is installed.
Tractian is not responsible for damage resulting from improper installation, misuse, or maintenance performed by Client or third parties.
5.2.
Where Tractian performs installation activities, Tractian will comply with applicable workplace safety requirements, including applicable OSHA requirements.
Tractian is not responsible for pre-existing site conditions, environmental hazards, or regulatory non-compliance at Client facilities.
Client must disclose known workplace hazards relevant to Tractian’s work and maintain a reasonably safe working environment.
Tractian may refuse or suspend installation or other on-site services where conditions are unsafe or materially non-compliant with applicable requirements.
5.3. Worksite Safety.
Client is responsible for ensuring that its facilities comply with applicable workplace safety requirements, including appropriate protections relating to chemical exposure, fall hazards, electrical hazards, fire hazards, confined spaces, and other environmental or structural risks.
5.4. Liability Disclaimer.
To the fullest extent permitted by law, Tractian will not be responsible for accidents, injuries, damages, or losses resulting from Client’s failure to provide a safe work environment, failure to disclose hazardous conditions, or failure to comply with applicable workplace safety requirements.
5.4.1.
Client agrees to indemnify and hold Tractian harmless from claims, damages, or liabilities arising from workplace hazards or non-compliance for which Client is responsible.
6. Payments and Billing
6.1.
Payment and billing terms are specified in the applicable Order Form.
Unless expressly stated otherwise in this Agreement or an Order Form, payments made to Tractian are non-refundable.
Client is responsible for applicable taxes, duties, and similar governmental charges imposed in connection with its purchase or use of the Products and Services.
6.2.
Where Implementation Services or Technical Visits are purchased, the full amount applicable to those Services may be charged on the first applicable invoice.
6.3. Late Payment.
Late amounts will accrue interest monthly at the lower of 1.5% or the maximum rate permitted by law, beginning on the applicable payment due date and continuing until payment is received.
Failure to make required payments may result in suspension of Client access, Services, and Licenses and may constitute a material breach of this Agreement.
6.4. Fees.
Each Party is responsible for its own expenses incurred in performing its obligations under this Agreement and for applicable taxes, duties, tariffs, levies, withholdings, and similar assessments resulting from its own activities.
7. Termination and Term
7.1. Term.
The term of this Agreement begins on the applicable Effective Date and continues until the License Expiration Date of the last active Order Form unless terminated earlier in accordance with this Agreement.
7.2. Renewal.
Upon expiration of the Initial Term of an Order Form, unless Client gives Tractian written notice of its intention not to renew at least thirty (30) days before the License Expiration Date, Tractian may elect to renew the applicable Order Form and related contract for an additional term.
A Renewal Term will be at least equal in duration to the immediately preceding Initial Term and will cover at least the Products and Services included in the expiring Order Form.
If Products or Services continue without interruption following the License Expiration Date, Client’s continued use constitutes acceptance of the Renewal Term.
7.2.1.
Tractian may notify Client of the renewal and request execution of a replacement Order Form.
If a new Order Form is not executed within thirty (30) days following the License Expiration Date, Tractian may continue invoicing Client using the applicable information from the preceding Order Form.
7.2.2.
Prices applicable to a renewed Order Form may be automatically adjusted based on changes in the Consumer Price Index published by the U.S. Bureau of Labor Statistics, or any successor index, calculated from the original Effective Date or the date of the most recent adjustment, as applicable.
7.3. Termination for Cause.
Either Party may terminate this Agreement upon thirty (30) days’ prior written notice if:
(a) the other Party materially breaches this Agreement and the breach cannot be cured, or the breach is capable of cure but remains uncured for thirty (30) days after written notice;
(b) the other Party becomes insolvent or admits its inability to pay debts as they become due;
(c) the other Party becomes subject to bankruptcy or insolvency proceedings; or
(d) the other Party is dissolved, liquidated, or takes corporate action for such purpose.
7.4. Effect of Termination.
Upon expiration or termination, provisions which by their nature are intended to survive will remain effective, including provisions relating to Feedback, Payments and Billing, Termination, Warranty, Limitation of Liability, Proprietary Rights, Confidentiality, Dispute Resolution, Governing Law, and General Provisions.
7.4.1.
Upon Client’s request, Tractian will delete Client Accounts and associated Client Data within ninety (90) days unless retention is required by applicable law or governmental authority.
7.4.2.
During the term and for up to thirty (30) days following termination, Client may request an export of its data.
Following such a request, Tractian will provide the applicable export within thirty (30) days in a standard and searchable format reasonably supported by the Services.
7.4.3. Return of Hardware.
Upon expiration or termination, licensed Sensors and Receivers must be returned to Tractian unless Tractian waives the return requirement.
Unless otherwise agreed, Hardware must be returned within thirty (30) days and freight must be prepaid by Client.
8. Warranty
8.1. Hardware Warranty.
Tractian provides Hardware warranties in accordance with the Hardware Warranty Policy available at https://tractian.com/en/hardware-warranty.
8.2. Hosted Software SLA.
During the term of the applicable Order Form, the Hosted Software SLA will remain applicable to the hosted GovCloud Services.
For purposes of GovCloud Services, references in the Hosted Software SLA to the MSA will mean this GovCloud Master License and Services Agreement.
8.3. Warranty Disclaimer.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR AN APPLICABLE SERVICE LEVEL AGREEMENT, AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE PRODUCTS AND SERVICES, INCLUDING SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
TRACTIAN, ON BEHALF OF ITSELF AND ITS MEMBERS, STOCKHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
TRACTIAN DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED, TIMELY, ERROR-FREE, OR COMPLETELY FREE OF SECURITY THREATS, VIRUSES, OR OTHER MALICIOUS SOFTWARE.
NO INFORMATION OR ADVICE PROVIDED BY TRACTIAN CREATES A WARRANTY NOT EXPRESSLY PROVIDED IN THIS AGREEMENT.
CLIENT ACKNOWLEDGES THE INHERENT RISKS ASSOCIATED WITH PRODUCTS AND SERVICES DELIVERED THROUGH OR CONNECTED TO NETWORKS AND THE INTERNET, INCLUDING RISKS OF THIRD-PARTY ATTACKS, UNAUTHORIZED ACCESS, MALICIOUS SOFTWARE, NETWORK INTERRUPTION, OR OTHER EVENTS OUTSIDE TRACTIAN’S REASONABLE CONTROL.
TRACTIAN IS NOT RESPONSIBLE FOR CLIENT’S COMPLIANCE PROGRAMS OR FOR DETERMINING WHETHER CLIENT’S PARTICULAR USE OF THE PRODUCTS AND SERVICES SATISFIES CLIENT’S LEGAL, REGULATORY, SECURITY, AUTHORIZATION, OR COMPLIANCE REQUIREMENTS.
THE PRODUCTS AND SERVICES ARE TOOLS THAT MAY ASSIST CLIENT WITH SUCH OBLIGATIONS BUT DO NOT REPLACE CLIENT’S OWN COMPLIANCE RESPONSIBILITIES, DATA BACKUPS, BUSINESS CONTINUITY PROCESSES, OR REDUNDANT DATA ARCHIVES.
9. Publicity and Marketing
9.1.
To the extent permitted by applicable law and Client policy, Tractian may use Client’s name, logo, publicly available press releases, earnings-call references, trademarks, and marketing materials to identify Client as a Tractian customer.
10. Limitation of Liability
10.1.
TO THE FULLEST EXTENT PERMITTED BY LAW, TRACTIAN AND ITS MEMBERS, STOCKHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS WILL NOT BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PRODUCTS OR SERVICES.
THIS EXCLUSION INCLUDES LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER OR HARDWARE DAMAGE, SYSTEM FAILURE, NETWORK OUTAGE, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, REGARDLESS OF THE THEORY OF LIABILITY AND WHETHER OR NOT TRACTIAN WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2.
TO THE EXTENT PERMITTED BY LAW, TRACTIAN’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, NEGLIGENCE, WARRANTY, OR OTHERWISE, WILL NOT EXCEED THE AMOUNTS PAID BY CLIENT TO TRACTIAN UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11. Proprietary Rights
11.1.
Tractian owns and retains all right, title, and interest in and to the Tractian Software, Products, Services, and all derivatives, modifications, improvements, updates, and enhancements thereto.
Nothing in this Agreement transfers ownership of Tractian intellectual property to Client except as expressly stated.
11.2. Hardware.
Sensors and Receivers are licensed, not sold, unless the applicable Order Form expressly specifies otherwise.
11.2.1. Licensed Hardware.
Where Hardware is licensed, Tractian retains ownership of the Hardware and all embedded components, firmware, software, architecture, designs, algorithms, and proprietary technology.
Client receives only the limited right to use such Hardware in connection with the Products and Services during the applicable License term.
11.2.2. Purchased Hardware.
Where an Order Form expressly states that Hardware is purchased, ownership of the physical Hardware transfers to Client.
Embedded firmware, software, configuration files, algorithms, diagnostic logic, communications protocols, designs, and other proprietary technology remain owned by Tractian and are licensed only for use in connection with applicable Tractian Products and Services.
11.3.
Tractian reserves all rights in its firmware, Web-based Software, Apps, and other intellectual property not expressly granted to Client under this Agreement.
11.4.
Client acknowledges that Tractian Hardware and Software, including their source code, architecture, specific designs, structures, modules, algorithms, and programs, contain proprietary information and trade secrets belonging to Tractian.
11.5.
Except to the extent expressly permitted by applicable law, Client will not disassemble, decompile, reverse engineer, or attempt to derive the source code, architecture, or proprietary design of the Products, nor authorize a third party to do so.
12. Confidentiality
12.1.
Each Party agrees not to disclose Confidential Information received from the other Party in connection with this Agreement without the other Party’s prior written consent, except as permitted by this Agreement or required by applicable law.
12.2. Client Data.
Tractian will not disclose Client Data to third parties except as necessary to provide the Services, as permitted by this Agreement, or as required by law.
Tractian will also protect non-public information provided by Client in connection with evaluating, procuring, configuring, supporting, or using the Services, including information concerning Client assets, equipment, configurations, maintenance activities, work orders, insights, and similar operational information.
13. Data Privacy and GovCloud Data Controls
13.1. Data Privacy.
Tractian will process Personal Data provided by Client in accordance with the Tractian Data Processing Addendum (“DPA”) available at https://tractian.com/en/data-processing-addendum, which is incorporated into this Agreement.
If the DPA or any other incorporated policy conflicts with the GovCloud-specific requirements in this Section 13, this Section 13 will control with respect to GovCloud Client Data.
13.2. Subprocessors.
Client authorizes Tractian to use third-party service providers and subprocessors where reasonably necessary to provide information technology infrastructure and related Services, including cloud infrastructure, data storage, database management, monitoring, backup, security, and related technical services.
Tractian will require applicable subprocessors to maintain confidentiality, security, and data-protection obligations appropriate to the Services they perform.
For GovCloud Services, Tractian will use subprocessors in a manner consistent with the applicable GovCloud architecture and applicable FedRAMP authorization or assessment scope.
13.3. Data Security Commitments.
Tractian will maintain commercially reasonable administrative, technical, and organizational safeguards designed to protect Client Data.
Tractian may suspend all or part of the Services without liability where reasonably necessary to investigate, prevent, mitigate, or respond to an actual or suspected security threat, vulnerability, compromise, or other risk affecting the Services.
Tractian will use commercially reasonable efforts to limit the scope and duration of such suspension.
13.4. No Training Using GovCloud Client Data.
Notwithstanding anything to the contrary in this Agreement, the Platform Terms of Use, the DPA, or any other Tractian policy or incorporated terms, Tractian will not use GovCloud Client Data to train, fine-tune, retrain, improve, or develop artificial intelligence or machine-learning models.
This restriction applies whether GovCloud Client Data is identifiable, de-identified, anonymized, aggregated, transformed, or otherwise processed.
Nothing in this Section prohibits Tractian from processing GovCloud Client Data as necessary to provide the GovCloud Services, including performing inference using models or algorithms already deployed as part of the Services, generating results requested by Client, operating condition-monitoring and diagnostic functionality, securing the Services, or troubleshooting technical issues.
Such permitted processing does not authorize Tractian to use GovCloud Client Data as training data.
13.5. U.S. Citizen Support and Access.
Technical support personnel assigned to the GovCloud Services will be United States citizens.
Access by Tractian personnel to GovCloud Client Data or production systems within the GovCloud environment will be restricted to authorized United States citizens with a legitimate business need for such access.
Access will be subject to Tractian’s applicable identity, authentication, authorization, logging, monitoring, and access-control procedures.
Personnel who do not access GovCloud Client Data or production systems may perform sales, finance, billing, contracting, administrative, product development, engineering, or other activities that do not require such access.
13.6. GovCloud and FedRAMP Scope.
GovCloud Services will be operated within the Tractian GovCloud environment applicable to the Services identified in the Order Form.
Where an Order Form expressly identifies the Services as FedRAMP High, the designation applies only to the applicable Services and components included within Tractian’s then-current FedRAMP High authorization, assessment, or approved security boundary, as applicable.
Client acknowledges that its own systems, networks, endpoints, configurations, integrations, users, and activities outside the Tractian GovCloud boundary remain Client’s responsibility.
Nothing in this Agreement represents that Products or Services outside the applicable GovCloud scope satisfy FedRAMP High or any other government security or compliance framework.
14. Insurance
14.1.
Tractian will maintain insurance policies with carriers having an A.M. Best rating of at least A-VII, including:
(i) Commercial General Liability
$1,000,000 each occurrence;
$1,000,000 personal and advertising injury;
$1,000,000 products and completed operations; and
$2,000,000 general aggregate.
(ii) Automobile Liability
$1,000,000 each accident for hired and non-owned automobiles.
(iii) Excess Liability
$5,000,000 each occurrence and $5,000,000 general aggregate for applicable underlying coverage.
(iv) Workers Compensation and Employment Liability
$1,000,000.
(v) Employment Practices Liability
$1,000,000.
(vi) Cyber and Technology Errors and Omissions
$5,000,000.
15. Export Control
15.1.
Client will comply with applicable export-control, import-control, and economic-sanctions laws and regulations of the United States and other applicable jurisdictions when accessing or using the Products and Services.
Client represents that it is not prohibited from receiving the Products or Services under applicable U.S. sanctions or export restrictions.
Client will not, and will ensure that its users do not, access, transfer, export, re-export, or use the Products or Services in violation of applicable trade sanctions, export restrictions, or regulatory prohibitions.
16. Dispute Resolution
16.1. Arbitration.
Any dispute arising out of or relating to this Agreement or Client’s use of the Products that the Parties cannot resolve within sixty (60) days following written notice of the dispute will be finally and exclusively resolved through confidential arbitration in Atlanta, Georgia, United States.
The arbitration will be conducted in English under the then-current Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) by one or more commercial arbitrators experienced in complex commercial disputes.
The arbitrator or arbitrators will have authority to award preliminary and permanent injunctive relief and any other relief available under applicable law and this Agreement.
17. Governing Law
17.1.
This Agreement and any action relating to it will be governed by the laws of the State of Georgia, without regard to conflict-of-laws principles.
Subject to Section 16, exclusive jurisdiction and venue for actions relating to this Agreement or Client’s use of the Products and Services will be the state and federal courts located in Georgia, and each Party consents to such jurisdiction.
18. General Provisions
18.1. Entire Agreement.
This Agreement, together with applicable Order Forms, amendments, addenda, and documents expressly incorporated by reference, constitutes the entire agreement between Tractian and Client concerning the applicable GovCloud Products and Services and supersedes prior agreements or understandings concerning the same subject matter.
If an Order Form conflicts with this MSA, the Order Form will control.
If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, that provision will be enforced to the maximum extent legally permissible and the remaining provisions will continue in full force and effect.
Any modification to an Order Form must be in writing and executed by authorized representatives of both Parties. Oral or informal communications will not modify an Order Form.
18.2. Assignment.
Client may not assign or transfer this Agreement by operation of law or otherwise without Tractian’s prior written consent.
Any attempted assignment without such consent is null and void.
Tractian may assign or transfer this Agreement without restriction.
Subject to these limitations, this Agreement will bind and benefit the Parties and their respective successors and permitted assigns.
18.3. Force Majeure.
Tractian will not be liable or deemed in breach of this Agreement for failure or delay in performing its obligations due to events or circumstances beyond its reasonable control.
Such events may include war, hostilities, acts of God, earthquakes, floods, fires, natural disasters, strikes or labor conditions, material shortages, epidemics, disease, government actions, failures of utilities or transportation, failures of communication or electronic systems, widespread Internet or cloud infrastructure outages, DNS failures, and third-party cyberattacks outside Tractian’s reasonable control.
18.4. Notices.
Notices under this Agreement must be made in writing.
Notices to Tractian must be delivered to Tractian’s legal notice email address published on its website or otherwise identified in the applicable Order Form.
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