PaneraTech, Inc. (“PaneraTech”) makes available glass furnace life optimization services (“Services”), including related Equipment, the XSight Platform, Processed Data, Documentation and embedded Software (collectively, “Deliverables”). These Terms and Conditions for SmartMelter Services (“Terms”) apply to any and all Services and other Deliverables provided by or on behalf of PaneraTech to Customer, including under any Contract, and shall apply, regardless of any additional or conflicting terms in any Contract or on any purchase order or other correspondence or documentation submitted by Customer to PaneraTech; any such additional, inconsistent or conflicting terms are deemed rejected, and the terms and conditions of these Terms shall govern and prevail. The Terms include: (a) Part 1 (General Terms and Conditions); Part 2 (Plant Requirements); (b) Part 3 (XSight Platform Terms); (c) Part 4 (Equipment Lease Terms); (d) Part 5 (Limited Warranties for Equipment); and (e) Part 6 (Definitions).
Part 1 – General Terms and Conditions
1.1 Scope. Each Deliverable is made available on a non-exclusive basis for Customer’s business use only, solely in connection with glass furnace(s) (“Furnace”) and the time period indicated in an applicable Quote. Any other use of a Deliverable is strictly prohibited. Customer shall not resell any Deliverable, make any Deliverable available for use or inspection by any third party, or use any Deliverable for any non-specified Furnace, or beyond an indicated Unit Lease Term, license period or term.
1.2 Customer Obligations. Customer will comply, and will cause all employees and others who gain access to Deliverables through Customer to comply, with: (a) this Agreement, including PaneraTech’s policies as described in Parts 2, 3 and 4; and (b) all applicable laws, rules, regulations and orders. Except as otherwise expressly permitted by section 1.8.2, Customer agrees not to use, or disclose to any third party, information which is confidential or proprietary (including Documentation, Sensors and Software embedded in a SmartMelter Unit) to PaneraTech or any affiliate of PaneraTech (“Affiliate”) or any third party vendor who delivers, manufactures or provides a Deliverable or a component thereof (“Vendor”) without the express written consent of PaneraTech.
1.3. Termination. Either party may terminate a Contract: (a) if the other party fails to cure a material breach within 45 days after receipt of written notice describing the alleged breach in reasonable detail; or (b) immediately, in the event either party becomes liquidated, dissolved, bankrupt or insolvent, whether voluntarily or involuntarily, or shall take any action so declared. PaneraTech may terminate a Contract immediately upon written notice if Customer is in breach of section 1.6 (Proprietary Rights), section 1.8 (Confidential Information), or section 1.11.4 (Export Controls). Except as set forth in section 1.3 (Termination), section 1.5 (Fees + Payments), section 1.6.2 (Deliverables), section 1.7 (Limited Warranties), section 1.8 (Confidential Information), section 1.9 (Limitation and Exclusion of Liability), or section 1.11 (General), which shall survive termination, upon termination of a Contract, all rights and duties of the parties under these Terms shall expire. In addition to any other available remedies, in the event PaneraTech terminates a Contract for material breach, Customer shall immediately pay, in addition to any other amounts then due and owing to PaneraTech, a termination charge equal to the fees for all Deliverable(s). Upon termination or expiration of a Contract, all outstanding invoices immediately become due and payable by certified check, cashier’s check, ACH or wire payment if the termination is due to a termination by PaneraTech, and all rights and licenses of Customer shall terminate.
1.4. Destruction of Raw Data + Confidential Info. Upon termination of a Contract, Customer will, at Customer’s sole expense: (a) immediately discontinue use of any and all applicable Deliverables (except for Processed Data); (b) within 10 business days, return all applicable Equipment via a pre-paid, insured, reputable international courier; and (c) within 10 business days, remove and destroy all Confidential Information (defined below), and confirm the same in a signed writing delivered to PaneraTech. Upon signed confirmation of removal and destruction of Raw Data and Confidential Information, PaneraTech will provide Customer with an electronic copy of all Processed Data recorded as part of the applicable terminated Services in a format readable by Customer using generally available third party software, such as a PDF reader.
1.5.1 Fees. Unless otherwise specified in an applicable Contract, fees for a Deliverable shall be set at the then-current PaneraTech fee for the Deliverable. All fees are exclusive of any taxes, fees and duties or other similar amounts, however designated. Customer shall pay taxes related to Deliverables (except those based on PaneraTech’s net income) or present an exemption certificate acceptable to all relevant taxing authorities.
1.5.2 Payments. Payments shall be made pursuant to the applicable Contract, in immediately available funds, in U.S. dollars, without any right of set-off or deduction. Fees are non-refundable. If Customer has not completed or appropriately complied with requirements which prevent or limit commencement or completion, the Deliverables shall be deemed to have been successfully delivered, installed or provided on the date when the Deliverables would have been delivered, installed or provided if Customer had timely and appropriately complied.
1.5.3 Late Payments. Payments not made when due shall accrue late fees of 1.5% per month or the highest amount allowable by law, whichever is lower, such interest to accrue on a daily basis before and after any judgment relating to collection. Late fees do not constitute an election of, or PaneraTech’s exclusive, remedy. Failure to pay when due shall entitle PaneraTech to suspend or terminate the applicable Contract upon notice to Customer; such suspension or termination will not relieve Customer of its obligation to pay fees and charges due. Customer shall pay any and all legal fees, collection fees and other expenses incurred by PaneraTech to enforce these Terms or any Contract.
1.5.4 Fee Disputes. If Customer reasonably disputes any invoice, Customer must pay the undisputed portion and submit written notice of the dispute (including sufficient detail of the nature of the dispute, the amount and invoices in dispute and information necessary to identify the affected Deliverable(s) for the disputed amount). All invoice disputes must be submitted to PaneraTech in writing within 30 days from the date of the applicable invoice. Customer waives the right to dispute any charges not disputed within such period. If a dispute is resolved against Customer, Customer shall pay such amounts plus interest at the rate referenced in section 1.5.3 from the original payment due date.
1.6. Proprietary Rights.
1.6.1 Information Provided by Customer. Customer: (a) represents that all text, drawings, documents and other information provided by or on behalf of Customer to PaneraTech, whether as part of the Furnace Intake Form or otherwise, is true and accurate and complies with the AUP; and (b) grants to PaneraTech the right to use the text, drawings, documents and other information to prepare one or more proposals and provide Services.
1.6.2 Deliverables. Except for any Processed Data, all Deliverables will be and remain the exclusive property of PaneraTech or its applicable Affiliate or Vendor. Customer will not, and will not permit any employee or other third party gaining access to Deliverables through Customer, to take any action inconsistent with PaneraTech’s or an applicable Affiliate’s or Vendor’s title thereto. Software and Documentation are protected under the copyright laws of the United States and equivalent international laws and treaties, and certain Deliverable components may be patented or patent-pending. Customer will not, and will not permit any third party, to: (a) adapt, modify or copy all or any part of any Deliverable; (b) remove, alter, cover or obscure any confidentiality, copyright, patent, government-restricted rights or other proprietary notices or legends included on or in Services or other Deliverables; (c) unlock, reverse engineer, tamper with, decrypt, disassemble or de-compile all or any part of any Software or other Deliverable, or otherwise reduce Software to human-readable form, or attempt to do any of the foregoing (except to the extent that such restriction is expressly prohibited by applicable law); (d) connect to any Sensor or other Equipment any equipment other than a Deliverable leased or licensed in connection with such Sensor or other Equipment; (e) publish any results of benchmark tests run on any Deliverable; (f) use or permit any Deliverable to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise; or (g) disclose, provide, or otherwise make available trade secrets contained within the Equipment, Software or Documentation in any form to any third party. Customer shall implement reasonable security measures to protect such trade secrets. Without limiting the generality of this section 1.6, Customer shall at all times protect and defend, at its own cost and expense, against claims arising by or through Customer challenging the title of PaneraTech as owner of any Equipment or other Deliverable made available to Customer, and keep such Deliverables free and clear from all claims, liens, processes and other encumbrances by or arising through Customer. All Deliverables (except for Processed Data) shall remain personal property of PaneraTech, regardless of the degree of annexation to, temporary installation in, or affixation to, real or personal property. During the term of any SmartMelter Solution license or Equipment lease, neither Customer nor any affiliate of Customer shall engage in the development of, or assist any other person or entity to develop, any solution, equipment or technology which competes with or is substantially similar to such SmartMelter Solution or Sensor.
1.7. Limited Warranties; Acknowledgements.
1.7.1 Limited Warranties. to the extent permitted by applicable law: (a) all Deliverables are provided on an “AS-IS” basis; and (b) neither PaneraTech nor any Affiliate or Vendor, nor any of their respective employees, agents, affiliates, suppliers, lessors, contractors or licensors, make any representations or warranties of any kind, express or implied, and such parties hereby expressly disclaim all such warranties with respect to all Deliverables provided hereunder, including all warranties (i) of merchantability, fitness for a particular purpose, non-infringement, title, satisfactory quality, quiet enjoyment, accuracy, or system integration; or (ii) arising from any course of dealing, course of performance, or usage in the industry. None of such parties warrant that access to or use of any Deliverable will be uninterrupted or error free; nor do any of them make any warranty as to the results that may be obtained from the use thereof or as to the accuracy, reliability or content of any information, service or merchandise contained in or provided through any Deliverable or on or in any website or other marketing materials. Neither PaneraTech nor any Affiliate or Vendor shall be liable for the Raw Data or Processed Data transferred to or from Customer or stored by Customer or others on or via any Deliverable.
1.7.2 Acknowledgements. Customer agrees and acknowledges that: (A) all block, overcoat and other layouts provided by PaneraTech are simulated approximations based on drawings and other information provided by Customer, and may not be to scale, and the actual size and location of blocks, insulation, overcoat and other materials should be determined and confirmed by Customer in consultation with a Plant engineer; (B) Sensors, Software and other Equipment used by PaneraTech have limitations, such as (but not limited to) the inability to see though metal or some overcoats; (C) some Sensor measurements may need to be retaken (such as when a Sensor makes insufficient contact with the refractory) or refined (such as in areas of greater concern); (D) operating and maintaining Furnaces is an inherently dangerous activity that Customer should undertake in accordance with industry best practices; (E) Customer will always follow training documentation and measurement guidelines for data collection provided by PaneraTech, along with Plant and industry standard safety policies and procedures; (F) Customer is solely responsible for all damages, injuries and other consequences of any action, inaction or decision made or taken by or on behalf of Customer with respect to the operation and maintenance of its Furnaces (“Furnace Consequences”), including any temporary actions taken by customer at the request of PaneraTech in connection with, or as a result of, an inspection or inspection report, such as (but not limited to) turning off or increasing cooling, attaching a Sensor to a wall, cutting to enable Sensor access, or drilling to determine the extent of glass penetration; (g) refractory conditions, projections and recommendations in any Inspection Report or other Documentation are merely estimates based on average SmartMelter refractory wear data of refractories which are similar to those used in the construction of the Furnace that is the subject of the Inspection Report or other Documentation; (H) changes made by Customer to a Furnace could affect one or more projections and recommendations included in an Inspection Report or other Documentation, such as changes in the average operating temperature of the Furnace or changes to the color or kind of glass manufactured in the Furnace; (I) Deliverables are intended to supplement, not to replace or act as a substitute for, a comprehensive, industry-standard Furnace monitoring program; and (J) PaneraTech does not and cannot guarantee Furnace health at any given moment in time.
1.7.3 Disclaimer of Certain Damages. In no event will PaneraTech or any Affiliate or Vendor, or their respective employees, agents, affiliates, suppliers, lessors, contractors or licensors or the like be liable to Customer or any third party for any indirect, incidental, special, consequential, exemplary or punitive damages (including damages for loss of goodwill, profits, revenue, data or use), arising out of or in connection with these Terms or any Deliverables provided or performed, in connection herewith, whether in an action in contract, tort, strict liability or other legal theory, even if such party has been advised of the possibility of such damages.
1.7.4 Sole Remedy. PaneraTech’s and its Affiliates’ and Vendors’ sole responsibility, and Customer’s sole remedy, in connection with any malfunction or defect in any Service or other Deliverable will be the repair, replacement or re-performance of the affected Deliverable in accordance with an applicable, unexpired limited warranty. PaneraTech may interrupt access to and use of any Deliverable (including Internet connectivity) at any time, without liability to Customer, to perform scheduled or emergency maintenance. PaneraTech will use reasonable commercial efforts to conduct scheduled maintenance during off-hours and to minimize disruptions and interruptions to Customer.
1.7.5 Vendor Deliverables. Customer’s rights, responsibilities and limitations with respect to each Vendor Deliverable shall be governed by, and may be conditioned upon Customer’s acceptance of, one or more licenses or other agreements made available to Customer by PaneraTech or the applicable Vendor (each, a “EULA”). Such EULAs may be made available to Customer: (a) as a “click-accept” agreement, link or notice of terms and conditions provided as part of an access, installation and/or download process; (b) attached to these Terms as an exhibit; or (c) with delivery or installation of the applicable Vendor Deliverable. Customer agrees to read, consent to and comply with the terms and conditions of each EULA. If a EULA is presented to Customer as a “click-accept” agreement, Customer shall accept the same. Each Vendor Deliverable is warranted or maintained solely by the applicable Vendor and not by PaneraTech. PaneraTech shall pass through, to the extent permitted, the applicable Vendor’s warranties and maintenance promises, and Customer agrees to look solely to such Vendors for warranty and maintenance claims in accordance with applicable EULAs.
1.8. Confidential Information.
1.8.1 Defined. “Confidential Information” by Customer is information regarding a Customer facility at which one or more Furnaces are located (“Plant”) and Furnace operations, glass manufacturing processes (including Furnace drawings) and technology, and technical plans and marketing and financial data. “Confidential Information” disclosed by PaneraTech is information regarding Deliverables (including operational processes, Inspection protocols, Deliverable formats, and maintenance recommendations), technical data (including equipment and Sensor designs and limitations), financial data, marketing data, and information relating to future development.
1.8.2 Scope of Use. The receiving party (“Receiving Party”) may use Confidential Information solely to the extent necessary to perform under these Terms and shall not disclose Confidential Information to any third party, other than to employees of Receiving Party who have a need to have access to and knowledge of Confidential Information, solely for the purpose authorized above, or to certain advisors of Receiving Party pursuant to section 1.8.5. Each party shall take appropriate measures to assure against unauthorized use or disclosure. Information disclosed by the disclosing party (“Disclosing Party”) or any affiliate or agent of Disclosing Party in written or other tangible form is Confidential Information if conspicuously designated as “Confidential,” or bears a similar legend, as well as any other information not so designated if it is known, or reasonably should be known, to Receiving Party to be confidential; provided, however, that at all times all components of every Deliverable are Confidential Information of PaneraTech, regardless of whether the component includes a legend. Information disclosed orally is Confidential Information only if: (a) identified as confidential at the time of disclosure; and (b) confirmed as confidential in writing within 30 days of disclosure.
1.8.3 Limitations. Receiving Party shall have no obligation with respect to information that: (a) was rightfully in possession of Receiving Party without any obligation of confidentiality prior to receiving it; (b) is, or subsequently becomes, legally and publicly available without breach of these Terms; (c) is rightfully obtained by Receiving Party from a source other than Disclosing Party without any obligation of confidentiality; or (d) is developed by or for Receiving Party without use of the Confidential Information and such independent development can be shown by documentary evidence. In the event Receiving Party receives a valid order issued by a court or government agency requiring disclosure of Confidential Information, Receiving Party shall provide written notice and enable the Disclosing Party the opportunity to oppose or restrict such disclosure. Upon written demand by Disclosing Party, Receiving Party shall: (x) cease using the Confidential Information; (y) return the Confidential Information and all copies, notes or extracts thereof to Disclosing Party within seven days of receipt of demand; and (z) certify in writing that Receiving Party has complied with such obligations.
1.8.4 Rights + Restrictions. Each party retains all right, title and interest to its Confidential Information. Except as provided in section 3.1, no license to any intellectual property (or application for intellectual property protection) is granted or implied by conveying Confidential Information. Receiving Party shall not reverse-engineer, tamper with, decompile, or disassemble any Deliverable disclosed to it (except to the extent such restriction is expressly prohibited by applicable law), and shall not remove, overprint or deface any notice of copyright or confidentiality, trademark, logo, legend, or other notices of ownership from any originals or copies of Confidential Information.
1.8.5 Publicity; Disclosures to Certain Advisors. Subject to this section 8, either party may disclose to its actual and prospective insurance brokers, underwriters, financial institutions, investors, analysts and permitted assignees, that Customer’s risk mitigation strategies include Services. Except as provided in the foregoing sentence: (a) neither party shall disclose the existence, subject matter, or discussions relating to, these Terms to any third party without the other party’s prior written consent; and (b) any public disclosure regarding these Terms is subject to prior review and written approval of both parties.
1.9. Limitation and Exclusion of Liability.
1.9.1 Subject to section 1.9.2, if an unaffiliated third party initiates a legal action against Customer alleging that Services provided by PaneraTech to Customer (the “Affected Services”) in accordance with the applicable Contract and these Terms directly infringes the third party’s intellectual property rights (“Third Party Rights”) (such action, a “Claim”), and such Claim is not a result of or related to Customer violating these Terms, then: (a) PaneraTech will: (i) defend Customer against the Claim; and (ii) pay costs, damages and/or attorneys’ fees included in a final judgment against Customer (without right of appeal), or in a settlement approved by PaneraTech, that are directly attributable to the Affected Services. The obligations of PaneraTech under this section do not apply with respect to Affected Services or portions or components thereof: (a) which constitute a Vendor Deliverable; (b) made in whole or in part in accordance to Customer specifications; (c) modified after shipment by Customer or its customer, if the alleged infringement relates to such modification; (d) combined with other products, processes or materials where the alleged infringement relates to such combination; (e) where Customer continues allegedly infringing activity after being notified thereof in writing or after being informed of or provided with modifications that would have avoided the alleged infringement; (f) where Customer use of the Affected Services is not strictly in accordance with the terms of these Terms; or (g) where changes were made, or actions taken, by PaneraTech upon Customer’s direct, written instructions and liability would not have arisen but for such instructions (collectively, “Excluded Claims”). The provisions of this section 1.9.1 set forth the entire liability of PaneraTech and the sole remedy of Customer with respect to infringement and allegations of infringement of intellectual property rights or other proprietary rights of any kind in connection with the installation, operation, design, distribution or use of all or any part of any Deliverables. Customer shall give immediate notice after obtaining knowledge of any Claim or discovery of facts on which Customer may base a request for indemnification under these Terms. PaneraTech shall not be liable for any losses, damages, costs, or expenses that result from a delay in providing notice.
1.9.2 PaneraTech’s and its Affiliates and Vendors’ collective liability to Customer or any third party shall not exceed the actual dollar amount paid by Customer to PaneraTech for the applicable Deliverable(s) under the applicable Contract which gave rise to such liability.
1.9.3 Customer shall defend, indemnify and hold PaneraTech, applicable Vendors and their respective officers, directors, agents and employees harmless from any and all claims, losses, damages, judgments, expenses and costs (including attorneys’ fees and expenses) arising out of any Excluded Claim or Customer’s: (a) use of any Deliverable (except to the extent arising from a defect in the design or manufacture of the Deliverable or the infringement by the Deliverable on the intellectual property rights of a third party); (b) breach or other violation of applicable law or these Terms, including any unauthorized use or alteration of a Deliverable; (c) decisions, actions or inactions based on use of Deliverables, including Furnace Consequences; and (d) misuse of Deliverables by Customer, its agents or third parties gaining access to any Deliverable or the output of any Deliverable through Customer (whether or not such is authorized by Customer).
1.10. Activation; Tampering/Fraud Detection; Lost Deliverables.
1.10.1 Activation. In order to use any Deliverable, Customer may be required to activate it with a registration number, genuine product key or other authorized method, and connect to the Internet.
1.10.2 Tampering/Fraud Detection. When Customer connects to the Internet while using a Deliverable, the Deliverable may automatically contact PaneraTech or a Vendor (or an affiliate of PaneraTech or the Vendor) to confirm whether the Deliverable used by Customer is genuine and appropriately associated with the Furnace(s), Sensor(s) or other Equipment with respect to which it is licensed, or whether any Sensor has been disassembled or otherwise tampered with. In either case, transmission of certain information will occur, and Internet, telephone and SMS service charges may apply. During activation or other use of a Deliverable, the Software may detect unauthorized uses, licensing or changes; in such a case, the Software may automatically report such information to PaneraTech or a Vendor, or terminate unauthorized use or access to the Software or an applicable Deliverable report. In the event of any unauthorized uses, licensing or changes, regardless of the means of detection: (a) the Customer shall promptly pay PaneraTech for such unauthorized use(s) in accordance with its then-standard rates, and for repair and/or recalibration of Damaged Equipment in accordance with Part 5; and (b) PaneraTech may choose, in its sole discretion, to terminate the Contract and exercise any other available remedies.
1.10.3 Damaged/Lost/Stolen Deliverables. Customer shall be solely responsible for the safekeeping and proper use and treatment of any Deliverable made available to Customer. Without limiting the generality of the foregoing: (a) Customer agrees to adopt and enforce safety and security rules intended to prevent damage, improper use of, or unauthorized access to, or loss or theft of, any Software, Equipment or other Deliverable made available to Customer; (b) Customer shall promptly report any damage, use prohibited by this Agreement or the Documentation or inconsistent with warnings displayed on or by the Deliverable or use of electronic devices (such as exposure to water), or unauthorized access to, or loss or theft of, any Deliverable to PaneraTech in writing and fully cooperate with PaneraTech and law enforcement in connection with any investigation into any unauthorized access to, or loss or theft of, any Deliverable; (c) PaneraTech may choose, in its sole discretion, to terminate this Contract and exercise any other available remedies in the event of any damage, improper use of, or unauthorized access to, or loss or theft of, any Deliverable; and (d) in the event of loss or theft of any leased Equipment, Customer shall immediately pay PaneraTech the applicable fee for lost or stolen Equipment described in Part 5.
1.11.1 Interpretation. Headings used in these Terms are for convenience only and not to be considered in construing these Terms. If any part of these Terms is held by a court of competent jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of these Terms shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law. Termination is not an exclusive remedy. The terms “include(s)” and “including” shall mean “include(s) without limitation” and “including without limitation,” respectively.
1.11.2 Assignment. Subject to the following, all of the terms and conditions of these Terms shall be binding upon, inure to the benefit of, and be enforceable by the respective successors and any permitted assigns of the parties. Customer shall not assign (by operation of law or otherwise) these Terms or any of its rights or obligations hereunder (including rights specific to a particular Furnace or Plant) without the prior written consent of PaneraTech. Any attempt by Customer to assign these Terms without PaneraTech’s prior written consent shall be null and void. There are no intended third party beneficiaries of these Terms.
1.11.3 No Waiver. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. To the extent permitted by applicable law, no action, regardless of form, arising out of these Terms may be brought under these Terms by Customer more than one year after the cause of action has accrued (namely, when the injured party knew or should have known about the injury giving rise to the applicable claim).
1.11.4 Export Controls. Customer certifies that it is not on the U.S. Department of Commerce’s Denied Persons List or affiliated lists, on the U.S. Department of Treasury’s Specially Designated Nationals List or on any U.S. Government export exclusion lists.
1.11.5 Governing Law. These Terms shall be governed in all respects (without regard to any conflict of laws provisions) by the laws of the United States of America and the State of Delaware as such laws are applied to agreements entered into and performed entirely within the State of Delaware between residents of Delaware. To the extent exclusion is permissible, the United Nations Convention on the International Sale of Goods will not apply, even where adopted as part of the domestic law of the country whose laws govern these Terms. If Customer is located in France or Quebec, Canada, the following clause applies: The Parties confirm that they have requested that these Terms be drafted in English. Les parties contractantes confirment qu’elles ont exigé quele présent contrat et tous les documents associés soient redigés en anglais. The non-prevailing party hereby agrees to pay all expenses, including all attorneys’ fees and expenses, incurred by the other party to enforce these Terms, including by PaneraTech in collecting the fees or other monies owed or provided herein.
1.11.6 Dispute Resolution for Customers in the U.S. or Canada. If Customer is organized or has an office in the United States or Canada: (a) any claim, whether based on contract, tort or other legal theory (including any claim of fraud or misrepresentation), arising out of or relating to these Terms, including the interpretation, performance, breach or termination thereof, shall be exclusively brought and resolved by the federal and state courts located in Wilmington, Delaware, U.S.A.; (b) 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, except where required by law; and (c) notwithstanding the foregoing, either party may enforce any judgment rendered by such courts in any court of competent jurisdiction.
1.11.7 Dispute Resolution for Customers outside of the U.S. or Canada. This section 1.11.7 applies only if Customer is not organized and does not have an office in the United States or Canada. ALL DISPUTES, CONTROVERSIES AND CLAIMS ARISING OUT OF OR RELATED TO THESE TERMS SHALL BE EXCLUSIVELY RESOLVED BY ARBITRATION CONDUCTED UNDER THE RULES OF COMMERCIAL ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE (“ICC”), SUPPLEMENTED AS NECESSARY BY THE PROCEDURAL RULES OF LAW OF THE US DISTRICT COURT OF DELAWARE, USA. THE ARBITRATION PROCEEDING SHALL TAKE PLACE IN WILMINGTON, DELAWARE, USA, IN THE ENGLISH LANGUAGE AND BEFORE AN ARBITRATOR CHOSEN BY MUTUAL AGREEMENT OF THE PARTIES OR, IF AGREEMENT CANNOT BE REACHED WITHIN 30 DAYS, BEFORE AN ARBITRATOR APPOINTED BY THE ICC. THE PARTIES SHALL BE ENTITLED TO REASONABLE DISCOVERY PRIOR TO THE HEARING; ANY DISPUTES CONCERNING THE SCOPE OF DISCOVERY SHALL BE DECIDED BY THE ARBITRATOR. EXCEPT IN CONNECTION WITH ANY ENFORCEMENT OF THE DECISION OR AWARD, THE ARBITRAL PROCEEDINGS, THE AWARD OR ANY DOCUMENTS EXCHANGED IN, OR CREATED FOR, THE ARBITRATION PROCEEDING SHALL BE KEPT CONFIDENTIAL. THE DECISION OF THE ARBITRATOR SHALL BE FINAL AND BINDING AND NOT SUBJECT TO APPEAL. THE AWARD OF THE ARBITRATOR SHALL BE ENFORCEABLE IN ANY COURT OF COMPETENT JURISDICTION. CUSTOMER AGREES IT HAS READ AND UNDERSTANDS THIS MANDATORY ARBITRATION PROVISION AND WAIVER OF JURY TRIAL, AND IT KNOWINGLY AND VOLUNTARILY WAIVES ITS RIGHTS TO A JURY TRIAL AND AGREES TO BINDING ARBITRATION.
1.11.8 Injunctive Relief. Notwithstanding any provisions of these Terms to the contrary, should PaneraTech, in its sole discretion, determine or believe that a breach of these Terms has occurred which gives rise to an injury for which PaneraTech may not be adequately compensated by monetary damages, PaneraTech may commence a lawsuit in the state or federal courts located in the State of Delaware, USA, to obtain emergency equitable relief, including but not limited to a preliminary injunction and temporary restraining order. Customer irrevocably consents to the personal jurisdiction of the state or federal courts of the State of Delaware, USA, should PaneraTech pursue remedies under this paragraph and agrees that service of process, summons, notice or other document by mail or overnight delivery by a national/international carrier, with proof of delivery, to Customer’s address shall be effective service of process.
1.11.9 Changes in Laws. PaneraTech may: (a) limit or discontinue the provision of any Deliverables to the extent PaneraTech is restricted by any rule, regulation, law or governmental entity; and (b) discontinue, upgrade or change the support, delivery and maintenance of any Deliverable if PaneraTech develops an upgraded version or otherwise no longer generally provides such Deliverables to its customers. In the event PaneraTech materially modifies the content or scope of Deliverables provided to Customer, the Parties shall renegotiate the fees in good faith according to prevailing pricing models.
1.11.10 Consent + Notices. Unless otherwise expressly indicated, any consent or authorization required under these Terms shall be at the sole but reasonable discretion of the party from whom consent is required. Notice shall be deemed to have been received by a party, and shall be effective, on the day received. All breach-related notices permitted or required under these Terms shall be in writing and delivered by recognized postal or courier services who provide delivery confirmation to the other party’s address set forth on the Contract, or such other address as the parties may provide in writing. All other notices may be sent by email with notice deemed given upon acknowledgement of receipt by a reply email.
1.11.11 Independent Contractors. The parties are independent contractors with respect to one another. Nothing in these Terms shall create a partnership, joint venture, agency, franchise, or employment relationship between the parties.
1.11.12 Force Majeure. Neither PaneraTech nor any Affiliate or Vendor will be liable for failure or delay in performing its obligations if such is due to circumstances beyond its reasonable control, including acts of Customer, acts of God, acts of any governmental body or law enforcement agency, riots, acts of war or terrorism, cybersecurity incidents, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability or interruption or delay in telecommunications or third party services, or inability to obtain raw materials, supplies, or power used in or software needed for provision of the Deliverables.
1.11.13 Entire Agreement. These Terms and the applicable Contract, exhibits and other relevant cross-referenced documents, comprises the entire agreement between the parties regarding the subject matter hereof and supersedes and merges all prior and contemporaneous proposals, understandings and all other agreements, oral and written, between the parties relating to the subject matter of these Terms. These Terms may be amended or modified only in a writing executed by both parties. These Terms may be executed in counterparts, both of which taken together shall constitute one single agreement between the parties. These Terms may be executed via facsimile, and a facsimile copy of either party’s signature shall be deemed and be enforceable as an original thereof.
Part 2 – Plant Requirements
2.1 Prior to implementation of any Service, PaneraTech and Customer shall agree on a mutually agreeable time interval of no more than three contiguous weekdays (the “Delivery Period”) for setup of required Deliverables. For example, prior to implementation of any Services for a Plant or Furnace, the parties must agree on a Delivery Period for initial setup.
2.2 During each Delivery Period, and during any other period in which a PaneraTech employee or representative is on site at a Plant, Customer shall: (a) ensure full access (as permitted during normal operations) to applicable Furnace(s) and appropriate parts of the Plant as needed to provide an applicable Service; (b) ensure that Plant personnel who will be interacting with PaneraTech on a regular basis are available and speak conversationally fluent English; (c) provide temperature-controlled office and meeting space with sufficient Internet connectivity for PaneraTech personnel to rest and conduct necessary in-office activities, such as training; (d) provide necessary projector equipment for training presentations; (e) provide a safe working environment, and be responsible for the safety of PaneraTech personnel visiting the Plant provided such persons follow Customer’s safety rules which have been provided to PaneraTech personnel in advance; (f) provide access to a low-pressure compressed airline for active cooling of the Sensors, if necessary; and (g) provide PaneraTech with wireless Internet access.
2.3 If (a) the duration of initial setup of a Furnace or Plant takes more than three days due to failure of Customer to comply with the Terms or these Plant Requirements, or (b) the duration of any Services takes more than the scheduled duration of those Services due to failure of Customer to comply with the Terms or these Plant Requirements, Customer shall pay PaneraTech an additional fee of $1,000 USD for each additional partial or full day required to complete such setup or Services.
2.4 Within a reasonable time prior to each Delivery Period, and during any other period in which a PaneraTech employee or representative is on site at a Plant: (a) Customer will make each such employee or representative aware of, and provide them with a copy of, all Plant Rules and Regulations, including those relating to safety and security; and (b) PaneraTech will require such PaneraTech employees or representatives to comply with all such Plant Rules and Regulations, provided such Plant Rules and Regulations do not violate applicable laws.
Part 3 – XSight Platform Terms
3.1 XSight Platform License. To the extent an applicable SmartMelter Solution provides Customer with access to the XSight Platform, such access: (a) is provided on a limited, non-exclusive, non-transferable and revocable basis, for the sole purpose of enabling Customer to view and download an applicable Inspection Report for the Plant which operates the Furnace to which the applicable Services apply; (b) will terminate on the earlier to occur of termination of this Agreement or six months after the date upon which PaneraTech begins delivering the applicable Services to Customer with respect to a particular Furnace; and (c) is subject to PaneraTech’s then-current terms and conditions for the XSight Platform, including the AUP. Resale of Inspection Reports or other Documentation is prohibited.
3.2. Use of Data. The XSight Platform will solely make Processed Data available to Customer; Raw Data is coded in a manner proprietary and confidential to PaneraTech. PaneraTech will use Raw Data to improve, and develop new, SmartMelter Solutions and Services, but will not do so in a way that identifies Customer.
Part 4 – Equipment Lease Terms
To the extent Customer licenses any SmartMelter Solution that includes the delivery of Equipment to, or use of Equipment by, Customer, the provisions of this Part 4 apply.
4.1 Equipment Leased, not Purchased. Any and all Equipment delivered to, or left in the possession of, Customer in connection with this Contract shall be deemed leased, not purchased, during the Unit Lease Period.
4.2 Location. All Equipment is specific to a particular Furnace and/or Plant. Prior to timely return of Equipment to PaneraTech in accordance with the Contract, Customer shall at all times ensure that such Equipment remains at the Plant designated in the applicable Quote, and is used solely with respect to the Furnace(s) for which the Equipment has been delivered.
4.3 Lease Term. The term of lease of any item of Equipment is commensurate with the Unit Lease Period.
4.4 Rent. Rent for all items of Equipment delivered to Customer is included as part of the license fees for the SmartMelter Solution connected to the Equipment; such fees are described in the applicable Quote. If any item of Equipment has not been timely returned to PaneraTech as provided in the applicable Quote, Customer shall pay SmartMelter Solution license fees to PaneraTech in connection with the related SmartMelter Solution on a pro rata basis, as if an additional Inspection were added for each partial or full Unit Lease Period (as defined in the applicable Quote), from the end of the relevant expired Unit Lease Period until the Equipment is returned to PaneraTech’s possession; provided, however, such payments shall not imply any ongoing right to retain said Equipment or use such SmartMelter Solution.
4.5 Risk of Loss and Permits. Customer shall take possession of Equipment upon delivery to Customer, and shall assume the risk of loss once it takes possession of the Equipment. Customer shall provide all permits, if any, necessary for the installation of the Equipment or any parts thereof. At its own expense, Customer shall also timely acquire and pay for any customs or other permits needed to import any Equipment; PaneraTech shall cooperate with the foregoing in good faith.
4.6 Shipment, Delivery and Inspection Process.
4.6.1 Shipments from PaneraTech. PaneraTech shall provide Customer with Equipment that is fully operational and in good condition and repair (except for normal wear and tear applicable to used equipment) when shipped by PaneraTech. When shipping Equipment to Customer, PaneraTech shall include in the shipment a form (“Equipment Condition Form”) that: (a) certifies that the Equipment meets the foregoing standard; (b) marks on a drawing of the Equipment any preexisting wear and tear to the Equipment; and (c) attaches one or more photos of the Equipment taken immediately prior to the time that the Equipment was packaged.
4.6.2 Receipt of Shipments from PaneraTech. Within one business day after Customer takes possession of any Equipment, Customer shall: (a) inspect the Equipment, including by comparing the Equipment as received to the condition of the Equipment when shipped as indicated in the Equipment Condition Form and photographs included with the shipment in accordance with section 4.6.1; (b) complete the Equipment Condition Form by indicating any variance between the condition of the Equipment when shipped and the condition of the Equipment or packaging when received; and (c) countersign the completed Equipment Condition Form on behalf of Customer and email a copy to PaneraTech, along with (if applicable) one or more photos of the Equipment and packaging in order to document any variance (if any) between the condition of the Equipment when shipped and the condition of the Equipment when received. Unless Customer within that time provides such a countersigned Equipment Condition Form specifying any such variance or any other objection to the Equipment, it shall be conclusively presumed that the Customer has fully inspected the Equipment for visible damage, has found the Equipment in visibly good condition and repair, and has accepted that the Equipment is not visibly damaged.
4.6.3 Shipments from Customer. When shipping Equipment back to PaneraTech, Customer shall provide PaneraTech with Equipment that is in the same condition as received by Customer, as indicated in the Equipment Condition Form (i.e., fully operational and in good condition and repair, except for normal wear and tear applicable to used equipment as indicated in the Equipment Condition Form), and include in the shipment an Equipment Condition Form that: (a) describes in writing and marks on a drawing of the Equipment any differences between the condition of the Equipment when received from PaneraTech and the condition of the Equipment at the time of shipment back to PaneraTech; (b) attaches one or more photos of the Equipment taken immediately prior to the time that the Equipment was packaged; and (c) is signed on behalf of Customer.
4.6.4 Receipt of Shipments from Customer. Within two business days after PaneraTech takes possession of any Equipment, PaneraTech shall: (a) inspect the Equipment, including by comparing the Equipment as received to the condition of the Equipment when shipped as indicated in the Equipment Condition Form and photographs included with the shipment in accordance with section 4.6.3; (b) complete the Equipment Condition Form by indicating any variance between the condition of the Equipment when shipped and the condition of the Equipment or packaging when received; and (c) countersign the completed Equipment Condition Form on behalf of PaneraTech and email a copy to Customer, along with (if applicable) one or more photos of the Equipment and packaging in order to document any variance (if any) between the condition of the Equipment when shipped and the condition of the Equipment when received. Unless PaneraTech within that time provides such a countersigned Equipment Condition Form specifying any such variance or any other objection to the Equipment, it shall be conclusively presumed that PaneraTech has fully inspected the Equipment for visible damage, has found the Equipment in visibly good condition and repair, and has accepted that the Equipment is not visibly damaged.
4.7 Possession And Use. So long as no breach of the Contract or applicable Quote has occurred and exists beyond the applicable cure period, Customer shall be entitled to and shall maintain possession of Equipment, subject to the provisions of this Contract and the applicable Quote, from the point it takes possession of the Equipment provided that it returns the Equipment to PaneraTech prior to expiration of the Unit Lease Period as described in the applicable Quote. Customer shall: (a) use all Equipment in a careful, proper and lawful manner, and not permit Equipment to be neglected or abused or to be used for any purpose for which it is not designed or intended; (b) comply with all instructions, manuals and guidelines relating to the transportation, possession, use, or maintenance of the Equipment and not violate any warranty, maintenance agreement or insurance policy covering the Equipment; (c) keep affixed all PaneraTech or manufacturer supplied labels, plates, safety equipment, warning or other markings in a proper and appropriate place on the Equipment; (d) cause the Equipment to be operated only by trained and competent employees who are knowledgeable in the function, operation and all safety features of the Equipment; and (e) pay all expenses of operation. Without limiting the generality of the foregoing, when shipping Equipment to PaneraTech, Customer shall, at its own expense (unless such expense is expressly included in an applicable Quote), (i) do so via a pre-paid, insured, reputable international courier, (ii) insure each Unit for no less than Fifty Thousand US Dollars ($50,000 USD), and (iii) immediately provide PaneraTech (via email) with an applicable tracking number for each shipment upon delivery of possession of Equipment to such courier.
4.8 FCC and Regulatory Compliance. Customer agrees to operate Sensors and other Equipment in compliance with the requirements of the applicable authority that regulates the use of radios in the country in which the Equipment is leased, which requirements shall be communicated in writing by PaneraTech to Customer, and to cooperate in good faith with PaneraTech with respect to any related regulatory filings, such as those required to declare use of a radio by a specified entity at a particular location. The radio regulatory organization in the United States is the Federal Communications Commission or “FCC.”
4.9 Addition Of Accessories. Customer will not, without the written consent of PaneraTech, install any accessories or devices on the Equipment. Any damage caused by the installation or removal of such items shall be repaired at Customer’s expense.
4.10 Personal Property. Equipment is, and shall at all times remain, personal property. If all or any part of Equipment is attached to, imbedded in or permanently resting upon any real property or any building thereon, or attached in any manner to what is permanent, by means of cement, plaster, nails, bolts, screws or otherwise, the Equipment shall nonetheless remain personal property with title remaining exclusively with PaneraTech.
4.11 Title, Assignments, And Encumbrances. All Equipment shall remain personal property and title thereto shall remain in PaneraTech exclusively. Neither this Lease, nor the Customer’s rights hereunder shall be assignable except with the PaneraTech’s written consent. Customer shall not lease, sublease, mortgage or otherwise encumber or part with possession of the Equipment or any part thereof, except with the written consent of PaneraTech. Customer shall keep the Equipment free from any and all liens and claims, and shall not do or permit any act or omission whereby PaneraTech’s title or rights may be encumbered or impaired. Customer authorizes PaneraTech to prepare and file, at PaneraTech’s election, one or more standard UCC financing statements as may be reasonably required to put third parties on notice of PaneraTech’s title in the Equipment.
4.12 Remedies. Without limiting any other remedies available under the Contract, or at law or in equity, at any time after a breach of this Contract, PaneraTech may exercise (but is not obligated to exercise) any one or more of the following remedies, in whole or in part and separately, consecutively, or concurrently: (a) enter any location where the Equipment is located, and take possession of and remove the Equipment; or (b) notify Customer to deliver, or to store and then deliver, the Equipment to PaneraTech.
4.13 Safety Procedures. When in possession or control of any Equipment, Customer agrees that: (a) Customer shall at all times operate Sensors and other Equipment within safety guidelines provided in the applicable manual for the Sensor or other Equipment; (b) Sensors are not to be operated near or on any blocks that are directly connected to electric boosting equipment while the electric boosting is on; (c) Sensors are not to be operated on surfaces that are rated for a higher temperature than the safe temperature range of the Sensor; (d) Sensors are not to be operated once the temperature for the Sensor operation reaches its designated limit; (e) Sensors are not to be operated on surfaces where there is water; (f) Customer must immediately cease the operation of any Sensor in any area where there is imminent threat to the operator or the Sensor; and (g) Sensors cannot be handled or operated by any person except a Customer employee who has been trained and certified by PaneraTech for use of the Sensor in question.
Part 5 – Limited Warranties for Equipment
If Customer licenses any SmartMelter Solution that includes the delivery of Equipment, during the Unit Lease Period, PaneraTech will (in its sole discretion), at Customer’s request, repair or replace with new or refurbished Equipment Defective or Damaged Equipment leased by PaneraTech to Customer in connection with the SmartMelter Solution, or require the repair or replacement of any Equipment it identifies as Defective or Damaged.
“Defective” means Equipment which has a defect in material or workmanship under normal use during the Unit Lease Period, and has not been Damaged.
Safety Recall Notices and Enhancement Notices. PaneraTech reserves the right to require the repair or replacement of any Equipment in order to improve safety by providing written notice to Customer (a “Safety Recall Notice”), or to enhance improvement of such Equipment (an “Enhancement Notice”). If PaneraTech recalls any Sensor or other Equipment, Customer shall: (a) immediately stop use of such Equipment; and (b) return such Equipment to PaneraTech within fourteen days of receipt of the Safety Recall Notice or Enhancement Notice, in accordance with PaneraTech instructions. PaneraTech will ship new, refurbished or repaired Equipment to replace the recalled Equipment within fourteen days of receipt of such recalled Equipment from Customer. PaneraTech will pay shipping costs related to a Safety Recall Notice or Enhancement Notice.
|Item of Equipment*||Repair or Replace Fee for Damaged Equipment per Occurrence per Item||Fee for Lost or Stolen Equipment
per Occurrence per item
|Cables with Controller||$3,000||$3,000|
|* Shipping Included. Repair or replace fees include shipping fees approved by PaneraTech. Customs fees, if any, are the responsibility of Customer.|
Part 6 – Definitions
Unless otherwise defined elsewhere in these Terms, capitalized terms used herein shall have the meaning provided in this Part 6.
“AUP” means PaneraTech’s then-current Acceptable Use Policy, which (among other things) identifies activities and content that are prohibited on, through or in connection with use of the Xsight Platform or use of any other platform, system, network, website, product, report, tool or service made available by or on behalf of PaneraTech.
“Contract” means: (a) any PaneraTech quote or proposal for Services (a “Quote”) to which Customer has timely consented, either electronically or in writing; and (b) any purchase order or other document that cross-references or corresponds to a Quote, and to which PaneraTech has timely consented, either electronically or in writing. These Terms shall apply to any Contract; any additional, inconsistent or conflicting terms in a Contract are deemed rejected, and the terms and conditions of these Terms shall govern and prevail.
“Delivery Date” means the date that Customer actually receives a SmartMelter Unit.
“Documentation” means user manuals, training materials, safety procedures, Furnace labelling and measurement guidelines, equipment use cautions, layouts, bottom plate cutout recommendations, Inspection reports, Deliverable descriptions and specifications, technical manuals, license agreements, user agreements, supporting materials and other information relating to Deliverables offered by PaneraTech, or an Affiliate or Vendor of PaneraTech (as applicable).
“Equipment” means any tangible equipment or hardware, such as a refractory thickness sensor, Furnace tomography sensor, controller or computer, that is made available to Customer in connection with a SmartMelter Solution. Any Equipment delivered to, or left with, Customer is leased, not sold.
“Initial Setup Fee” means a fee for Initial Setup Service for a specified Furnace.
“Initial Setup Service” means the following one-time, on-site Services provided per Furnace per Quote: (a) marking the applicable Furnace with a high temperature marker; (b) setting that Furnace up on Customer’s licensed version of XSight; and (c) determining whether any additional attachments are required for a SmartMelter Unit to map relevant areas of that Furnace due to unique design contours of that Furnace.
“Initial Training Fee” means a fee for Initial Training Service for a specified Furnace.
“Initial Training Service” means, for projects where Customer will lease a SmartMelter Unit and conduct all or part of an Inspection themselves, one-time, remote instruction that trains up to three Customer employees to: (a) set up Equipment, Customer’s licensed version of XSight, and a designated Furnace in preparation for an Inspection as described in the definition of Initial Setup Service; (b) conduct an Inspection of that Furnace using a SmartMelter Unit; and (c) operate XSight.
“Inspection” means using Equipment specified in a Quote during the applicable Unit Lease Period to conduct measurements permitted by the applicable Quote. Unless otherwise provided in an applicable Quote in exchange for an additional Inspection Services Fee, Inspections are to be conducted by trained employees of the Customer.
“Inspection Service” means an Inspection performed by one or more trained PaneraTech employees or trained contractors engaged by PaneraTech.
“Inspection Service Fee” means a per-Inspection fee charged by PaneraTech for Inspection Services.
“Processed Data” means Raw Data that has been processed by PaneraTech and made available to Customer in accordance with a Service.
“Raw Data” means unprocessed, PaneraTech proprietary radar data collected by a Sensor.
“Sensor” means a refractory thickness sensor or Furnace tomography sensor, or any other add-on sensor, and related support equipment.
“SmartMelter Solution” means a PaneraTech solution for furnace life optimization, consisting of: (a) a SmartMelter Unit; and (b) the XSight Platform.
“SmartMelter Unit” means portable Equipment, consisting of Sensors, a handheld computer, and an Antenna, for use in conducting permitted Inspections; SmartMelter Units may be used and/or refurbished.
“Software” means a machine readable (object code) version of a computer program, including firmware, and any copies made, bug fixes for, updates to, or upgrades thereof, that is provided as a licensed component of a Deliverable.
“Unit Lease Period” means the ten (10) business day period commencing on the Delivery Date of a SmartMelter Unit, unless a different period is specified in a Contract, in which case such different period shall apply. During each Unit Lease Period: (a) Customer may conduct permitted Inspection(s); (b) but, in any event, prior to expiration of such Unit Lease Period Customer must provide the SmartMelter Unit to a pre-paid, insured, reputable international courier for return to PaneraTech in accordance with Sections 4.6.3 and 4.7. Customer may not extend any Unit Lease Period without the written permission of PaneraTech; any extension is subject to PaneraTech’s then-applicable extension fees and availability.
“Vendor Deliverable” means a Deliverable delivered, manufactured or provided by a Vendor.
“XSight Platform” is a proprietary, web-based platform which serves both as: (a) the remote, server-side component of a SmartMelter Solution; and (b) a furnace health management platform. The XSight Platform processes and stores Raw Data delivered by XSight, and makes applicable Inspection Reports remotely available to authenticated customers. When remotely accessing the XSight Platform, Customer shall comply with PaneraTech’s then-current terms and conditions for the XSight Platform, including the AUP.