Last updated 2025/06/09
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General Terms and Conditions of Sale
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Clause 1. NOTICE
This General Terms and Conditions for Sale (“GTCS”) governs any sale, leasing of the Products and/or Services by Otodata Wireless Network Inc. (hereunder “Otodata” or “Provider”) to Customer (defined in Clause 2). Otodata’s acceptance of Customer’s Purchase Order or purchasing request is subject to and expressly made conditional on these Terms and Conditions. Any additional or different terms proposed by Customer are expressly objected to and shall not be binding upon Otodata unless expressly accepted in writing by Otodata authorized representative. Any order for Products and/or Services shall constitute acceptance of these Terms and Conditions. Otodata reserves the right to update the GTCS at any time by giving Customer thirty (30) calendar days’ notice of any changes by posting notice on Otodata website https://www.otodata.eu/terms-and-conditions.
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Clause 2. DEFINITIONS
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a) “Agreement” means this General Terms and Conditions for Sale, also referred as “GTCS”.
b) “Contract” means this General Terms and Conditions for Sale (GTCS), or an executed Master Service Agreement (MSA) if any, including Otodata accepted Customer Purchase Order.
c) “Customer” refers to the legal entity that has entered into this Agreement or a Contract with the Service Provider (Otodata) to receive remote tank monitoring services. The Customer is responsible for ensuring Otodata and/or Otodata’s contractor’s access to the tanks, compliance with applicable laws and regulations, and Terms of Use, and timely payment for the services, and other terms and conditions as outlined in this Agreement.
d) “Deliverable(s)” means Products and/or Services Otodata agrees to provide Customer under a Contract. Deliverables include the Scope of Work.
e) “Product(s)” means the telemetry tank monitoring devices and accessories purchased by Customer from Otodata and installed on Customer’s tanks. The Product(s) are designed, manufactured and supplied by Otodata to Customer under a purchase order. Product(s) has the same meaning as “Monitoring Equipment” under this Agreement.
f) “Telemetry Monitor(s)” or “Monitor(s)” means the telemetry tank monitor device(s) excluding accessories.
g) “Purchasing Model” means one of the three business models offered by “Otodata”, The Service coverage is stated in Clause 3.1.1 of this Agreement.
h) “Services” shall mean the tank monitoring service provided by Otodata, subject to the business model Customer subscribed, which may include real-time data collection, remote monitoring, remote diagnostic, technical support, Products maintenance, and repair and replacement of Products.
i) “Intellectual Property” or “IP” means any legally enforceable rights, worldwide, under statute or common law with respect to inventive subject matter or discoveries (hereinafter, “Inventions”) or original works of authorship and including, but not limited to patents, copyrights (including mask works), trademarks and trade secrets.
j) “Intellectual Property Right” or “IPR” means any intellectual and industrial property rights including, but not limited to, copyright, moral rights and neighboring rights, all rights in relation to: inventions (including patent rights and utility models), trademarks, database rights, design rights, service marks, confidential information (including trade secrets and know how), drawings, prototypes, copyright works, algorithms, software and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic field, afforded by law anywhere in the world whether registered or unregistered or capable of registration and all applications thereof. IPR is an exclusive right to produce the Product or Services, make copies of the Products or Services, market the Products or Services related to this Agreement.
k) “Background IP” or “Supplier IP” means intellectual property that a Party owns or controls prior to the commencement of the Contract or that is developed independently outside the scope of the Contract. Background IP is a pre-existing IP or independently developed IP that is brought into the relationship for use in performing the Contract.
l) “Foreground IP” refers to the intellectual property that is created, developed, or conceived during the performance of a Contract. Given the fact that the Products and/or Services offered by Otodata under Contract is solely and independently developed by Otodata, there is no foreground IP created in this Agreement, unless expressively set forth in any Contract (MSA, HaaS, TMaaS).
m) “Master Service Agreement” or “MSA” means a separate sales Contract executed between Otodata and Customer that set forth the terms and conditions governing major business transaction concerning Customer’s purchasing of Otodata’s Products and Services under either HaaS or TMaaS Model. “Agreement”.
n) “Purchase Order” or “PO” means a written order issued by Customer to Otodata and accepted by Otodata set forth terms and conditions including pricing, quantity, delivery terms etc.…which govern the Products and Services Customer purchased from Otodata.
o) “Specification” means a detailed description of the technical specification or criteria that the hardware Products, software, and Services to be met under this Agreement.
p) “HaaS” (Hardware As A Service). HaaS is one of the three business models offered by Otodata, the Service coverage of HaaS model is sated in clause 3.1.2.
q) “TMaaS” (Tank Monitoring As A Service) TMaaS is one of the three business models offered by Otodata. The Service coverage for TMaaS model is stated in 3.1.3. The TMaaS model is a seven (7) years’ fixed term Contract which includes (a) Monitoring Equipment supplied to Customer but under the ownership of Otodata; (b) day to day tank monitoring services; (c) Monitoring Equipment installation and software deployment services; (d) Monitoring Equipment and software maintenance services. TMaaS covers all data transmission and connectivity services i.e.: sim cards and data roaming along with installation or maintenance of the unit. Under TMaaS business model, Otodata retains device ownership throughout the entire term of the Contract unless Customer “buyout” the Monitoring Equipment at the end of the applicable Contract.
Clause 3. SCOPE OF SERVICES
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3.1 Otodata provide Customer with Monitoring Devices and access to tank monitoring services at Customer’s designated location(s). Scope of Services varies from each business model that Customer is contracted for as stated below.
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3.1.1 Services under Purchasing Model include:​
a) Supply of Monitoring Equipment. Otodata shall provide Customer with Telemetry Monitors and remote tank monitoring Services stated below. Upon Customer’s payment of the Products, the title of the Products is transferred from Otodata to Customer.
b) Core Daily Telemetry Monitoring Services. Subject to Customer’s payment of monthly fee for the monitoring services, Otodata shall make the Nee-Vo Software and/or API available to Customer twenty-four (24) hours a day, seven (7) days a week except the regular weekly maintenance may occasionally cause disruption of service availability. Customer shall be informed twenty-four (24) hours in advance for any unscheduled maintenance as required.
c) Technical Support. Otodata shall provide Customer with technical support Services for each unit of Telemetry Device(s) purchased from Otodata via telephone, web-form, email during the normal business hours and for the entire term of the subscription and ensure that the documentation and specifications remain complete and accurate at all the time.
d) Customer Portal/Applications Maintenance. Otodata shall provide Customer with a free branded mobile app and access to the Nee-Vo online platform, delivering real-time data.
e) Provide Instructions and Materials. Otodata shall provide Customer with comprehensive installation manuals, method statements and risk assessments instruction manuals to support Customer’s installation of the Telemetry Devices.
f) On-line virtual Training: Otodata shall provide Customer with training on the installation of the Telemetry Devices and use of the Website and Applications as required.
g) Consultation. Otodata shall provide Customer with consultation services and programming as Customer may request from time to time.
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3.1.2 Services under HaaS Model include:
a) HaaS Model covers all the Services included in Purchasing model. However, under HaaS Model, the Monitoring Equipment is leased to Customer, Otodata shall retain the ownership of the Monitoring Equipment.
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3.1.3 Services under TMaaS Model include:
a) TMaaS Model covers all the Services under Purchasing and HaaS Model, plus the value- added Services stated in b).
b) Field Services including installation and maintenance of Monitoring Equipment.
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Clause 4. DELIVERY, TRANSFER OF RISK AND TITLE.
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4.1 Delivery Terms. Otodata shall provide delivery of the Products in accordance with the quality, delivery schedule, delivery address specified in Otodata approved Customer Purchase Order or Service Request.
4.2 Incoterms. Unless specifically agreed in writing, Otodata shall deliver Products DAP (Customer’s facility) Incoterms 2020. under DAP Incoterms 2020, Otodata is responsible for export packaging, loading charges, export duty and clearance, Origin terminal handling charges, transportation and delivery to port or customer appointed location of destination, freight charges, destination terminal handling charges. Customer is responsible for (1) unloading the Products at the destination and the cost associated with the unloading products; (2) processing custom clearance and cost associated with customer clearance, import duty/taxes.
4.3 Risk and Title Transfer. Under “Purchasing” model, the title and ownership of the Products are transferred from Otodata to Customer upon completion of the delivery. However, under HaaS or TMaaS model, the title of Products shall always remain with Otodata.
​Clause 5. PRICE AND PAYMENT TERMS
5.1 Pricing. Price of Monitoring Equipment and tank monitoring services are stated in either the executed Master Service Agreement (MSA) between Otodata and Customer, or the quote provided by Otodata sales team and are subject to applicable taxes. Fees may be subject to adjustment upon renewal or by notice from Otodata, effective at the beginning of the next billing cycle.
5.2 INVOICE. Otodata shall send the invoice for the sold Products to Customer upon the delivery of the Products. The invoice for monitoring services shall be sent to Customer by email on monthly basis. Each invoice shall indicate the description of Products or Services, the Quantity, Purchase Order number or Service Request Number associated with the invoice.
5.3 Payment Terms. Customer shall affect payment to Otodata for the Products and Services it received in net thirty (30) calendar days from the invoice date. Otodata reserves the right to suspend Service in the event of non-payment.
5.4 VAT Tax. All amounts payable by Customer are exclusive of valued added tax chargeable from time to time (VAT).
5.5 Late Payment. Customer will reimburse Otodata for all costs associated with collecting delinquent or dishonoured payments. Otodata may charge late payment fees at the lowest of (a) 1.5% per month (18% per year) or (b) the maximum rate allowed by law for overdue payments.
5.6 Set-off. Otodata may set-off the amount owing to Otodata by Customer against any amount payable to Otodata under any Contract or a Purchase Order. This Clause 5.6 shall survive termination or expiry of MSA or Purchase Order.
Clause 6. TERMS OF USE
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6.1 Applicability. The Terms of Use is applicable to all the Products and Services Customer purchased from Otodata under any Customer Purchaser Order or Service Request. Otodata reserves the right to update the Terms of Use.
6.2 Equipment Ownership: The Monitoring Equipment is Provider-owned under HaaS and TMaaS Models, unless it is purchased by Customer under Purchasing Model.
6.3 Safety of Customer and Third Party. Customer shall only use the Products and Services when it is safe to do so. Customer shall use the Products and Services in compliance with the law and shall be solely responsible for the use of Products and Services. Such obligations are equally applicable to any third party who use the Products and Services through Customer’s user account. These Terms of Use apply to all users of the connected Device.
6.4 Users’ Obligations. Customer is responsible and liable for all activities of users of Customer’s connected Device, including all access to or use of the Services. Without limiting the foregoing, it is Customers’ responsibility to: (i) inform other users of customer’s Device that the other users’ access to, and use of the Services is subject to these Terms of Use; and (ii) ensure that other users of your device comply with these Terms of Use.
6.5 Compliance with Law and Industry Rule and Regulations. Customer shall obey all laws, traffic rules, and traffic regulations governing the operation of Customer’s vehicle and use of the Application and Customer will not access and/or use any Service or connected Device in a manner that violates any law, rule or regulation. Without limiting the foregoing, it is Customer’s sole responsibility to exercise good judgment and observe all safety measures required by law, traffic rules, and traffic regulations while accessing and/or using the services and Application.
6.6 Environment and Compatibility to Use. Customer shall read the Products Marking indicated in both Otodata Product Manual and Otodata PO Acknowledgement document and ensure that Product shall be used in the right environment and compatible with the substance contained in the tanks and being monitored. It is the Customer’s sole responsibility to ensure that Customer shall use Otodata Products compliance with the product rating/markings indicated in Otodata Product Manual, as summarized below.
​​6.7 Purpose of the Products(s). For the Customers who purchased the TM5240HP, the TM5240 tank monitor equipped with a Hydrostatic Pressure sensor, please note that this Monitoring Equipment is designed and intended for use in fuels and lubricant applications when equipped with a Hydrostatic Pressure sensor. please note that this Monitoring Equipment is designed and intended for use in fuels and lubricant when equipped with an Hytrel cable, or chemical applications when equipped with a Kynar cable. If this Monitoring Equipment is used in chemical substances, it is critical for Customer to use the Monitoring Equipment only in a manner that is compatible with the material composition of the Hydrostatic Pressure Sensor and the components of the chemical substance.
6.8 Respect Material Compatibility. Customer shall validate and warranty that the Material Composition of the TM5240HP is compatible with any chemical substance they intend to monitor by using Otodata Products. The materials used to construct the TM5240HP are listed in the documentation package which is supplied to Customer along with the Products delivery.
6.9 Account Creation. Customer shall be required to create an account to use the Services. Customer shall (i) provide accurate and complete information; (ii) keep their account and password confidential under their sole supervision; (iii) notify Otodata immediately of any breach of security or unauthorized use of their account.
6.10 Condition to Use. Customer agrees not to: (i) access, tamper with, or use any non-public areas of the Services, Application or Otodata’s computer systems; (ii) attempt to probe, scan, or test the vulnerability of the Services, Application or any related system or network or breach any security or authentication measures used in connection with the Service and such systems and networks; (iii) attempt to decipher, decompile, disassemble, reverse engineer or otherwise investigate any of the software used to provide the Services and the Application; (iv) use the Services or the Application in an abusive way contrary to its intended use or to its documentation; and (v) systematically retrieve data or other content from the Services and the Application to create or compile, directly or indirectly, in single or multiple downloads, a compilation, database or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise.
6.11 Using Otodata APP. Otodata may access, modify or update the software and application used to provided Services without additional notice or consent to Customer. Customer shall, as required, connect to, add, or modify Otodata’s remote tank Monitoring Equipment solely using Otodata’s application installed on Customer’s mobile device. Meanwhile, Customer acknowledge that the Telemetry Monitors and application do not replace readings directly taken from the gauge on the tanks and must not be the sole monitoring method used by Customer while filling tanks.
6.12 Service Disruption. Otodata is not liable for any service disruptions due to factors beyond its control, such as network outages, power failures, force majeure events, or the disruption caused by once per week (3 hours each time) scheduled system maintenance performed by Otodata for Nee-Vo portal.
6.13 Disclaimer. Customer represents and warrants that their users have reached the age of majority in their jurisdiction of residence and have full legal capacity to enter into binding contracts or are at least 16 years or age and possess legal parental or guardian consent and are fully able and competent to enter into and abide by these Terms of Use.
Clause 7. WARRANTY
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7.1 Standard Warranty
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7.1.1 Applicability. The standard warranty is applicable for the Telemetry Monitor purchased by Customer under “Purchasing” business model in which Customer has ownership of the Product.
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7.1.2 Duration of Coverage. Five (5) years effective from the delivery date of the Products to Customer.
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7.1.3 Scope of Coverage
a) The standard warranty covers any electrical or mechanical failure caused by a manufacturing defect on the Telemetry Monitor(s) and leads.
b) Otodata further warrants that the Products including the repaired or replacement items shall:
i. Be free from defects in material and workmanship
ii. In all respects comply with all applicable laws and regulations and be fit for the purpose that the Products intends to be used
iii. Be free from functional and design defects,
iv. Service performed in good and workmanlike manner
v. Are free from liens, encumbrances and other claims of third parties.
c) Otodata shall provide Repair or Replacement on the Products that are entitled for warranty coverage at no cost of Customer. The duration of warranty coverage of the repaired or replaced items shall be the remaining period of the five (5) years standard warranty coverage tied up with the original new Products purchased from Otodata.
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7.1.4 Exclusion from Standard Warranty Coverage. The events listed below are not covered by the standard warranty:
a) Any Telemetry Monitor that is modified, disassembled, or repaired by Customer or a third party without authorization of Otodata.
b) any Customer induced damage caused by its employees, contractors, users etc., including any physical damages or malfunctions caused by improper installation or misuse of Customer or any third party;
c) if the Product(s) are not used in its intended environment set forth Clause 7 “Terms of Use”;
d) if Customer requests for modification of the transmission frequency which exceeds the standard setting of the frequency;
e) Damage or malfunctions occur as result of Force Majeure event as defined in Clause 14.
f) Product(s) are lost, stolen;
g) The Product(s) exceeds the standard warranty coverage period;
h) Accessories such as adapters, sensors, floats, gauges, dials etc. are covered by one (1) year manufacturing warranty.
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7.2 Disclaimer.
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7.2.1 The Services and Application are provided “as is” without warranty of any kind, either express or implied, including without limitation any implied warranties of condition, uninterrupted use, merchantability, fitness for a particular purpose, or non-infringement. This provision may not apply in some specific jurisdiction, but Customer agrees that it shall be interpreted to its fullest extent.
7.2.2 The remote monitoring Services rely on wireless communication networks. Services may not be available in remote or enclosed areas. Customer acknowledges that the area where Customer use the remote monitoring Services, and the application may affect the Services Otodata provided.
7.2.3 The Services are not a substitute for regular physical inspection, maintenance, or other safety protocols required by applicable laws, regulations, or industry standards. Otodata shall not be liable for any loss, damage, or injury resulting from reliance on the telemetry data, including but not limited to, tank overfills, leaks, environmental damage, or operational downtime.
7.2.4 Customer who uses Otodata’s Services assume full responsibility for interpreting and acting upon the data provided. Otodata disclaims for any direct, indirect, incidental, or consequential damage arising from the use or inability to use the Services.
7.2.5 Otodata’s sole obligation under this Warranty clause is to provide remote monitoring Service, repair or replace defective Monitoring Equipment and address service issues within a reasonable timeframe.
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Clause 8. TERMINATION
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8.1 Termination for Default.
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8.1.1 Without limiting its other rights or remedies, Otodata may terminate the Services and deactivate Customer’s account immediately if Customer is in material breach of this Agreement or applicable Contract.
8.1.2 Customer may cancel its account or terminate this Agreement by providing forty-five (45) days written notice in the event Otodata materially breach any provision of the Contract, given that such default is not cured within forty-five (45) calendar days from receiving the termination notice.
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8.1.3 Effect of Termination for Default.
a) In the event the Agreement is terminated due to Customer’s default, Customer shall pay the lump sum of monthly fee covering the remaining Term of the applicable HaaS or TMaaS subscription. Upon termination of the Agreement, Otodata shall have the right to retrieve the Hardware Device at Customer’s sole expense.
b) In the event if the Termination is due to Otodata’s default, Customer shall have no further obligation other than 1) pay Otodata the outstanding monthly fee associated with the Service rendered. 2) return the Hardware Device to Otodata and shipping cost shall be borne by Otodata.
8.2 Termination for Bankruptcy or Insolvency.
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8.2.1 Either Party may, by written notice to the other Party, terminate this Agreement and/or a Purchase Order in whole or in part in any one of the following circumstances:
a) If the other party is declared bankrupt or dissolved.
b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts.
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8.3 Termination for Convenience
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8.3.1 Under “Purchasing Model”.
a) Either Party may cancel or terminate subscription of Purchasing Model at any time for convenience by giving the other Party forty-five (45) calendar days written notice.
b) Upon termination, Customer shall pay Otodata within thirty (30) days for the monthly fees that are associated with the Services performed by Otodata, and plus the cost incurred to Otodata for any materials and work in progress services up to the date of termination.
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8.3.2 Under “HaaS ” or “TMaaS” Contract
a) Neither Party may terminate an Agreement of a fixed Term HaaS or TMaaS Subscription without contractual default of the other Party. In the event of early termination by Customer without Otodata’s default, Customer has obligation to pay the lump sum of the contractual monthly fee covering the remaining Term of HaaS or TMaaS subscription as set forth the applicable MSA.
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8.4 Effect of Early Termination for Any Cause
8.4.1 Besides the obligation stated above set forth Clause 8.1, Clause 8.3, upon termination or expiration of a SOW regardless for any cause, the following termination effects shall apply:
a) Cessation of Services: all Services provided by Otodata shall cease as of the effective date of termination, and all terminated Telemetry Monitors shall be remotely deactivated.
b) Final Payment: Customer shall effect payment within 45 days for the Services performed by Otodata up to the effective date of termination, including any applicable demobilization or equipment recovery costs as set forth in applicable Master Service Agreement (MSA).
c) Return of Equipment and Materials: Customer shall return the installed or uninstalled Telemetry Monitor(S) to Otodata with thirty (30) days upon termination date. Each Party shall promptly return or, at the disclosing Party’s request, destroy all Confidential Information including documentation, or materials belonging to the Disclosing Party, unless otherwise agreed or required by law.
d) Transition Assistance: If requested by Customer and agreed in writing by Otodata in the applicable SOW, Otodata shall provide reasonable transition services for a period not to exceed thirty (30) days from termination date at Customer’s cost, as set forth in the applicable MSA.
e) No Further Liability: Except for obligations arising prior to termination or those expressly surviving obligation as set forth “Surviving Provision” of the Agreement, neither Party shall have any further liability to the other under this Agreement following its termination or expiration of this Agreement.
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8.5 Surviving Provisions.
8.5.1 The provisions of the Contract and this Agreement relating to Confidentiality, Intellectual Property Rights, Effect of Termination, Limitation of Liability, Indemnities, Assignment, Governing Law and Dispute Resolution, and other provisions that expressly stated in the Contract or by their nature are intended to continue to have effect, shall survive termination or expiration of the Contract.
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Clause 9. INTELLECTUAL PROPERTY RIGHTS
9.1 Background IP Right
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9.1.1 Parties acknowledge that any pre-existing materials (including, but not limited to, software source code, object code, and documentation related thereto), and other creative and technical content, specifically including but not limited to Nee-Vo and related software applications, hardware, firmware, and monitoring software and Services, as well as any successors independently developed by Otodata or Otodata’s supplier prior to or outside of this Agreement or any Contract shall be the sole and exclusive property of Otodata or Otodata’s Supplier (the Background IP owner), and all rights related thereto, including, without limitation, copyrights, trademarks, trade secrets, patents, and other intellectual property or proprietary rights, are exclusively reserved to Otodata or its applicable owner.
9.1.2 It is understood that no title to or ownership of each Party’s Background IP is transferred to Customer under this Agreement or Contract unless explicitly set forth in a Statement of Work. To the extent the Otodata Background IP is integrated into any Deliverables, Otodata hereby grants Customer a revocable, nonexclusive, royalty-free license to use, for performance of Services under this Agreement during the Term of the applicable Contract (either the Term of Extended Warranty Program, or HaaS or TMaaS Contract).
9.1.3 Nothing contained in this Agreement shall be construed as granting Customer either expressly or by implication, estoppel, or otherwise, any license under any invention, improvement, discovery, patent, copyright, know-how or other intellectual property, now or hereafter owned or controlled by Otodata.
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9.2 Foreground IP Right
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9.2.1 Parties acknowledge all the Deliverables of the Contract under any business models (including Purchasing, HaaS, or TMaaS) are restricted to supply of Products, tank installation or maintenance, and remote tank monitoring Services, in such Services, Otodata typically use its own tools, software, and process (its background IP) to deliver the monitoring services, which does not generate new IP (foreground IP) unless Parties engage in custom development (e.g. building new monitoring tools, dashboards, or analytic models) as part of Deliverables of the Contract. Otodata ground Customer royalty free, non-exclusive license to use the Product and the software embedded in the Product as required during the Term of the Agreement.
9.2.2 Parties further acknowledge that all right, title, and interest in and to the Product, Services and application are and will remain Otodata’s exclusive Intellectual Property. The Services and application are protected by copyright, trademark, and other domestic and foreign intellectual property law.
9.2.3 Customer shall not reproduce, modify, or sell copies of the Products or Services to any third party without Otodata’s prior written authorization.
9.2.4 Nothing contained in this Agreement shall be construed as granting Customer either expressly or by implication, estoppel, or otherwise, any license under any invention, improvement, discovery, patent, copyright, know-how or other intellectual property, now or hereafter owned or controlled by Supplier.
9.2.5 This clause 9 shall survive termination or expiry of the Contract.
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Clause 10. INDEMNITY
10.1 In no event shall either party be liable to the other party for indirect, special, punitive or consequential damages (collectively, “indirect damages”), regardless of the nature of the claim, unless the damage is caused by the gross negligence and willful misconduct, act of fraud or bad faith of breaching party.
10.2 Customer agrees to indemnify and hold harmless Otodata from any claims, damages, or expense arising from Customer’s misuse or alteration of the Monitoring Equipment, unauthorized access to the monitoring data, or any breach of this Agreement by Customer, or any Customer’s intellectual property infringement.
10.3 From the effective date and as long as the Services remain in use by Customer or Customer’s customers, each Party shall hold the other Party harmless against ant third party claims in connection with the alleged or actual infringement of Intellectual Property rights belonging to a third party, and agrees to bear the full cost of all consequences, including any damage awards as well as settlement made in connection with the alleged infringement, and legal fees that maybe incurred by the other Party as a consequence thereof. Otodata shall not be responsible for indemnifying Customer against claims arising out of infringement that is determined to have been caused by (a) Customer's Specification when no non-infringing means of satisfying the Specification was available; (b) Otodata's use of Customer Background IP or (c) Customer's modification or combination of the Product in a manner that causes such modified or combined Product to be infringing when the original Product was not infringing.
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Clause 11. LIMITATION OF LIABILITY
11.1 To the fullest extent permitted under applicable law, under no circumstances shall Otodata or its directors, officers, shareholders, affiliates or agents be liable for any indirect, special, incidental, consequential, multiple or punitive damages, lost profits, or opportunity costs suffered by Purchaser directly or indirectly in connection with the Contracts and/or resulting from the termination of the Contracts, or for any liability to third parties incurred by Otodata, including subcontractors, under any theory of liability, including strict liability.
11.2 Otodata’s total liability to Customer for all claims grounded in the law, or suits of any kind, whether based upon the Contract, tort (including negligence), strict liability, or otherwise, for any losses, damages, costs or expenses of any kind whatsoever arising out of, resulting from, or related to the performance or breach of the Contracts shall not exceed the total price of the applicable Purchase Order or Service Request paid by Customer to Otodata.
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Clause 12. CONFIDENTIALITY
12.1 Customer shall sign Otodata Mutual NDA prior to engaging any business discussion or transaction with Otodata. In case of missing an executed NDA, this clause 12 shall govern confidentiality requirements between the Parties. Each Party undertakes to the other that it shall keep the confidential information secret and will use it exclusively for purposes stated in the executed NDA or performing the Contract, and shall not disclose any Confidential Information to any third party, without the other Party’s prior written consent, except it is compelled to be disclosed by reason of a governmental or judicial order or applicable law, provided that prior notice is given to the disclosing party to permit them an opportunity to seek protection of the Confidential Information.
12.2 All Confidential Information will be protected by the receiving Party with at least the same level of security and care as it uses with its own Confidential Information. Each Party may disclose Confidential Information to its employees who have a “need to know” and for purposes of performing the Contract. The obligations herein relating to confidentiality shall continue in full force and effect for a period of ten (10) years after the expiration or termination of the NDA or the applicable Contract; provided however, that with respect to any trade secrets contained in the Confidential Information, the confidentiality obligations will be perpetual.
12.3 Upon request of information disclosing party, the information receiving party shall return or destroy all the Confidential Information owned by the disclosing party for the performance of the Agreement. The information receiving party shall provide certificate of destruction.
12.4 Each Party acknowledges and agrees that the other Party would be irreparably damaged in the event of the disclosure of its Confidential Information. Upon the occurrence of a breach or a threatened breach of the confidentiality obligations set forth in this Clause 12, the non-breaching Party shall be entitled to injunctive or other equitable relief to stop or prevent such disclosures.
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Clause 13. Data Security and Privacy Policy
13.1 Each Party is responsible for complying with the privacy laws applicable to its business when processing Personal Information provided by the other Party.
13.2 Otodata shall take suitable technical and organizational measures to protect Personal Information received from Customer against loss, unauthorized disclosure or access, and unlawful processing.
13.3 Otodata warrants that it is ISO 27001 compliant and will remain ISO 27001 (or any equivalent successor) compliant during the term of Customer’s subscription of Otodata’s Services.
13.4 Otodata collects only the personal information reasonably required for the purpose of providing Products and/or Services to Customer or to improve Customer experience for the purposes permitted by Customer or required by applicable data privacy laws.
13.5 Customer is responsible for obtaining consent from and giving notice to its users of Otodata Services, employees and agents regarding Customer’s and Otodata’s collection and use of information of Customer’s users, employee or agent in connection with the Services.
13.6 Customer will only make accessible or provide Customer Personal Data to Otodata when it has the legal authority to do so.
13.7 By using Otodata Products and/or Services, Customer consent to the collection, use and sharing of its personal information as described in Otodata Privacy Policy (https://www.otodata.eu/privacy-policy), which may updated from time to time. Any changes made on the Otodata Privacy Policy will be effective when the revised policy is posted in the webpage of Otodata Customer Portal or will be informed to the Customer when the change made is required by applicable laws.
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Clause 14. FORCE MAJEURE
14.1 Definition. Neither Party shall be liable for delay in performance or non-performance hereunder caused by unforeseeable, irresistible, unavoidable events beyond the reasonable control of the affected Party including but not limited to: acts of God, fire, flood, earthquake, windstorm, nature disasters, explosion, strike, war, epidemics, sabotages, riots, acts of terrorism, power failure, a failure of the GSM Provider’s network, failure of a utility service or transport or telecommunications network, civil or regulatory authority, governmental actions (“Force Majeure”). The contractual obligations of the Party claiming the case of Force Majeure shall be suspended as from the date of notification, providing proof of the effectiveness of this event is submitted in writing.
14.2 Notification of Force Majeure. A Party prevented from fulfilling its obligations duly and timely by an event of Force Majeure must promptly, but no later than five (5) calendar days of the occurrence or anticipated occurrence of the Force Majeure, give the other Party written notice of same, together with the expected duration of any Force Majeure and keep the other Party currently informed as to the status of, or changes in circumstances or expected duration of said Force Majeure or anticipated Force Majeure and provide a proactive risk mitigation plan to minimize the impact of Force Majeure.
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Clause 15. ASSIGNEMENT & SUBCONTRACTING
15.1 Neither Party may assign or transfer any of its rights or obligations under a Contract without the prior written consent of the other Party, except that either Party may assign, novate a Contract without such consent to an affiliate or in connection with operation of law, merge, acquisition, or sale of substantially all of its assets. Otodata may sub-contract any of the Services without the consent of Customer but is responsible to Customer for the acts or omissions of its sub-contractors.
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Clause 16. GOVERNING LAW
16.1 These General Terms and Conditions for Sale shall be governed by and construed by the laws of the Province of Quebec, Canada and the laws of Canada and the United States of America and to be performed in Customer’s jurisdiction. All disputes arising out of this Agreement shall be brought to the Courts of competent jurisdiction in the district of Montreal, Province of Québec, Canada.
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Clause 17. LANGUAGE
17.1 The language of this Agreement is English. If there is a conflict between this Agreement and any translation, the English version will take precedence.