Customer Agreement

END USER TERMS AND CONDITIONS FOR USE OF THE FLEETQI™

By opening the packaging containing this FleetQi™ (“Product”) or by using such Product in any manner, you are consenting and agreeing to be bound by the following terms and conditions. You are also agreeing that the following terms and conditions constitute a legally valid and binding contract that is enforceable against you. If you do not agree to all of the terms and conditions set forth below, you must promptly return the Product for a full refund prior to using them in any manner.

1. Acceptance — ALL SALES ARE SUBJECT TO AND EXPRESSLY CONDITIONED UPON THE TERMS AND CONDITIONS CONTAINED HEREIN, AND UPON BUYER’S ASSENT THERETO. NO VARIATION OF THESE TERMS AND CONDITIONS SHALL BE BINDING UPON ELECTRONIXIQ LLC (“XiQ”) UNLESS AGREED TO IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF XiQ.
For purposes of this agreement, “Seller” shall mean either XiQ, if the Product is purchased or otherwise acquired directly from XiQ, or a XiQ authorized reseller. Buyer, by accepting the Product, shall be deemed to have assented to the terms and conditions set forth herein, notwithstanding any terms contained in any prior or later communications from Buyer and whether or not Seller shall specifically or expressly object to any such terms.

2. Warranties – THIS WARRANTY IS APPLICABLE FOR SERVICE WITH XiQ PRODUCTS. XiQ MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS SOLD, DISTRIBUTED, LOCATED OR USED OUTSIDE OF THE WARRANTY.  NOTWITHSTANDING THE FOREGOING, XiQ SHALL PROVIDE BUYER A WARRANTY ON THE FLEETQI™ PROCURED FROM XiQ FOR THE SERVICE OF XiQ PRODUCTS PER THE TERMS AND CONDITIONS HEREIN. TO THE EXTENT THAT THE FOREGOING DISCLAIMERS ARE INVALID OR UNENFORCEABLE UNDER THE LAWS OF ANY JURISDICTION, THE WARRANTY, DISCLAIMER, LIMITATION OF LIABILITY AND OTHER PROVISIONS SET FORTH BELOW SHALL THEREUPON BE EFFECTIVE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
Notwithstanding Buyer’s acceptance thereof, if the FleetQi™ is purchased or otherwise acquired directly from XiQ, XiQ warrants that for a period of twelve (12) months from date of delivery that: (i) the Product shall conform in all material respects with the Product Specifications provided by XiQ with the Product, and (ii) the FleetQi™ products are free from defects in materials and workmanship. The warranty provided herein specifically excludes any software or hardware not provided by XiQ. If Product is purchased from a XiQ authorized reseller, any additional warranty obligations shall be provided in writing directly by such XiQ authorized reseller to Buyer. THIS WARRANTY IS EXCLUSIVE AND XiQ MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. Seller’s warranties made in connection with this sale shall not be effective if Seller has determined, in its sole discretion, that Buyer has misused the Product in any manner, has failed to use the Product in accordance with industry standards or practices, or has failed to use the Product in accordance with instructions, if any, furnished by Seller.
BUYER’S EXCLUSIVE REMEDY WITH RESPECT TO PRODUCT PROVED TO SELLER’S SATISFACTION TO BE DEFECTIVE OR NONCONFORMING SHALL BE REPLACEMENT OF SUCH PRODUCTS WITHOUT CHARGE OR REFUND OF THE PURCHASE PRICE, IN SELLER’S SOLE DISCRETION, UPON THE RETURN OF SUCH PRODUCTS IN ACCORDANCE WITH SELLER’S INSTRUCTIONS BELOW. NEITHER SELLER NOR XiQ NOR ANY OF ITS AFFILIATES SHALL IN ANY EVENT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCT, EVEN IF SELLER OR XiQ OR ITS AFFILIATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, LOSS OF PRODUCTS OF BUYER OR OTHER USE OR ANY LIABILITY OF BUYER TO A THIRD PARTY ON ACCOUNT OF SUCH LOSS, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PRODUCT, INCLUDING PERSONAL INJURY OR PROPERTY DAMAGE UNLESS SUCH PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY SELLER’S GROSS NEGLIGENCE.
In the event that the FleetQi™ fails to conform to the warranty set forth herein, during the warranty period: (i) Buyer shall notify XiQ in a timely manner in writing that such FleetQi™, as applicable, failed to conform and shall furnish a detailed explanation of any alleged nonconformity; (ii) Buyer, at its expense, will contact either XiQ or a XiQ trained service engineer to assess the issue and identify the defective FleetQi™, as applicable; and (ii) at XiQ’s option and election, Buyer shall either return such nonconforming FleetQi™ to XiQ (at its manufacturing facility or at a place designated by XiQ) or destroy such FleetQi™, as applicable, and provide XiQ with written certification of destruction. In the event that a FleetQi™, as applicable, is returned to XiQ’s manufacturing facility, XiQ may analyze such FleetQi™, as applicable, for nonconformities. In the event that XiQ determines that such XiQ, as applicable, is conforming, the FleetQi™, as applicable, shall be shipped to Buyer and Buyer shall be responsible for the payment for such FleetQi™, as applicable, and related shipping charges. In the event that XiQ determines that such FleetQi™, as applicable, is nonconforming, XiQ shall be responsible for the payment for such FleetQi™, as applicable, and related shipping charges. Except as expressly provided herein, Buyer shall not have the right to return a FleetQi™, as applicable, to XiQ without XiQ’s prior written consent.

3. Buyer’s Use of Product — Buyer shall not use this Product for any commercial purpose, including without limitation performance of testing services, unless expressly agreed to in writing by XiQ or as specifically authorized by XiQ through a XiQ authorized reseller. Buyer agrees that no rights or licenses under XiQ’s patents shall be implied from the sale of the FleetQi™ Product, except as expressly provided herein or as specifically agreed to in writing by XiQ, and Buyer does not receive any right under XiQ’s patent rights hereunder. BUYER HEREBY GRANTS TO XiQ A NONEXCLUSIVE, WORLDWIDE, UNRESTRICTED, ROYALTY-FREE, FULLY PAID-UP LICENSE, WITH THE RIGHT TO GRANT AND AUTHORIZE SUBLICENSES, UNDER ANY AND ALL PATENT RIGHTS IN INVENTIONS COMPRISING MODIFICATIONS, EXTENSIONS, OR ENHANCEMENTS MADE BY BUYER TO THE PRODUCT OR TO THE MANUFACTURE OR USE OF THE PRODUCT (“IMPROVEMENT PATENTS”), TO MAKE, HAVE MADE, USE, IMPORT, OFFER FOR SALE OR SELL ANY AND ALL OF THE PRODUCT; EXPLOIT ANY AND ALL METHODS OR PROCESSES; AND OTHERWISE EXPLOIT IMPROVEMENT PATENTS FOR ALL PURPOSES. NOTWITHSTANDING THE FOREGOING, “IMPROVEMENT PATENTS” SPECIFICALLY EXCLUDES PATENT CLAIMS CONCEIVED AND REDUCED TO PRACTICE BY BUYER.
Buyer has the responsibility and hereby expressly assumes the risk to verify the hazards and to conduct any further research necessary to learn the hazards involved in using the FleetQi™ Product. Buyer also has the duty to warn Buyer’s customers, employees, agents, assigns, officers, successors and any auxiliary or third party personnel (such as freight handlers, etc.) of any and all risks involved in using or handling the Product. Buyer agrees to comply with instructions, if any, furnished by Seller or XiQ relating to the use of the Product and to not misuse the Product in any manner. Buyer shall not reverse engineer, decompile, disassemble or modify the FleetQi™ Product. Buyer acknowledges that XiQ retains ownership of all patents, trademarks, trade secrets and other proprietary rights relating to or residing in the FleetQi™ Product and Buyer receives no rights to such intellectual property rights by virtue of its purchase of Product other than as expressly set forth herein. Buyer shall have no right to use any trademarks owned or licensed to XiQ without the express written permission of XiQ.

4. Buyer’s Representations, Release and Indemnity — Buyer represents and warrants that it shall use the Product in accordance with Paragraph 3, “Buyer’s Use of Product,” and that any such use of the Product will not violate any law, regulation, judicial order or injunction. Buyer agrees to release, discharge, disclaim and renounce any and all claims, demands, actions, causes of action and/or suits in law or equity, now existing or hereafter arising, whether known or unknown, against Seller and XiQ, and their respective officers, directors, employees, agents, successors and assigns (collectively the “Released Parties”), with respect to the use of the FleetQi™ Product. Buyer agrees to indemnify and hold harmless the Released Parties from and against any suits, losses, claims, demands, liabilities, costs and expenses (including attorney, accounting, expert witness, and consulting fees) that any of the Released Parties may sustain or incur as a result of any claim against such Released Party based upon negligence, breach of warranty, strict liability in tort, contract or any other theory of law or equity arising out of, directly or indirectly, the use of the Product or by reason of Buyer’s failure to perform its obligations contained herein. Buyer shall fully cooperate with the Released Parties in the investigation and determination of the cause of any accident involving the Product which results in personal injury or property damage and shall make available to the Released Parties all statements, reports, recordings and tests made by Buyer or made available to Buyer by others.

5. Patent Disclaimer — Neither Seller nor XiQ warrants that the use or sale of the FleetQi™ Product will not infringe the claims of any United States or other patents covering the Product itself or the use thereof in combination with other products or in the operation of any process.