TERMS AND CONDITIONS
Last updated
Sep 19, 2023
Warranty
Otodata is a manufacturer of remote tank monitoring hardware, software and applications. Parts of Otodata solutions operate on existing wireless technologies such as 3G/4G, LTE, CAT-M and NB-IoT, which are supported by existing telecommunications system operators.
Otodata will be providing hardware and services to the Client. The Client is a fuel marketer which will be using Otodata hardware, software and services in their daily operations to help their fuel delivery business operate more efficiently and profitably.
Equipment
Remote tank monitoring hardware, which is battery powered, operating on 3G/4G, LTE, CAT-M and/or NB-IoT cellular technology. It carries a 5-year warranty against manufacturing defects with an average battery life of 15+ years under normal settings and conditions. The warranty will be rendered null and void if the unit is altered in any way, disassembled, physically damaged or if it’s not used in its intended environment.
Floats, leads, gauges, dials & accessories carry a one-year warranty.
Otodata guarantees that the Readers are free from manufacturing defects and undertakes to replace or repair, without charge, any defective Readers within four (4) weeks of receiving a faulty Reader. Damage caused by mishandling or installation is not covered by this warranty. The Client must request authorization to return a faulty Reader. The authorization number must be written on the returned package. Replacement of the returned unit will be subject to final approval by Otodata.
Services
Includes the Otodata portal, which is a full-featured tank monitoring management system, accessible through the Internet by the Client allowing their personnel to view and manage, set alerts, send alerts and authorize application users.
Also included, is a free mobile app to all Clients allowing their customers to view their tank levels in real-time, consult usage history, be alerted when their tanks are low on fuel, request refills, and contact them directly at a press of a button.
FCC Rules
The Otodata remote tank monitoring device complies with part 15 of the FCC Rules. Operation is subject to the following two conditions: (1) This device may not cause harmful interference, and (2) this device must accept any interference received, including interference that may cause undesired operation. This device is also compliant with Industry Canada's RSS standards for licence-exempt radio apparatuses. Authorized use depends on the following two conditions: (1) the device must not create radio interference, and (2) the device user must accept all radio interference, even if this interference could potentially impair its functioning.
WARNING
This monitor has been tested and certified safe for use in Class 1, Division 2, Groups C & D T3 hazardous locations. Changes or modifications to the unit must only be performed by an authorized Otodata technician. For outdoor use only. Explosion Hazard - Batteries must only be changed in an area free of ignitable concentrations. Do not open when an explosive atmosphere is present. Potential electrostatic charging hazard - wipe only with a damp cloth.
Battery Replacement
Please contact Otodata Support or your sales representative for battery replacement programs. On-site battery replacement is only suitable for our TM6030, TM6035, TM5030 and TM5035 series of products (as long as the operation is performed by properly trained technicians and following the corresponding Otodata procedure.) Consult with your representative to know more about Otodata’s training for your technicians. Due to battery configuration and Hazardous Location restrictions, battery replacement for TM7530HP series must be performed on Otodata premises.
Warranty Claim Process
To obtain remedies under this Warranty, Otodata Wireless Network Inc. must receive the Client claim before the end of the Warranty Period. To do so, the Client may contact us via email at info@otodatatankmonitors.com, via phone at +1 (844) 763-3344, or by mail at 1212 Louvain Ouest, Montreal, QC H4N 1G5.
Privacy Policy
Otodata Wireless Network Inc. is committed to protect the personal information of the users of the Otodata owned websites (otodata.ca & otodatatankmonitors.com) and online portal, as detailed in the present policy.
Purpose and Scope of the Policy
This privacy policy describes how we collect, use and disclose your personal information as well as cookies and how this personal information can be consulted and corrected when necessary.
By accessing and using Otodata owned websites, you accept the terms and conditions of this policy.
Personal Information Collected
We collect your personal information when you create your account or when you simply access our websites, when you contact our customer service or when you will use our mobile applications and or our associated online portals.
Depending on the circumstances, personal information may include your name, contact information (street address, electronic address, and telephone number), details about your use of the system and data about your consumption and or tank usage as well as your browser preferences and operating system settings.
Use and Communication of your Personal Information
We use and disclose your personal information mainly:
To allow us to provide our services;
To answer questions and information requests;
For any other purposes authorized or required by law;
To ensure compatibility with your operating system and its peripherals;
To provide you with a desired user experience which may include stored preferences which you have selected and that have been stored and collected in the form of cookies.
When we disclose your personal information to third parties, we take reasonable measures to ensure that the rules set forth in this policy are complied with.
Right to Access and Correct
On written request and subject to proof of identity, you may consult the personal information that we have disclosed, and ask that any necessary corrections be made, where applicable, as authorized or required by law.
However, to make sure that the personal information we maintain about you is accurate and up to date, please inform us immediately of any change in your personal information.
Update
This Privacy Policy may be amended without notice.
Any request to access or correct your personal information and any question or comment you may have with respect to our privacy policy must be sent to the Privacy protection team by mail or email using the following contact information:
Privacy Policy
Otodata Wireless Network Inc.
1212 Louvain Ouest, Montreal, QC H4N 1G5
Terms of Use
This document, (the “Terms of Use”) is a contract between You (“you”) and Otodata Wireless Network Inc. (“us” or “we”) concerning your use of the Otodata mobile application (the “Application”), the web based dashboard and the Otodata RTLM unit (Remote tank level monitor) (the “services”). By accepting these Terms of Use and by continuing to use the Mobile Application, our devices and our services, you agree to all the terms and conditions stated in these Terms of Use. The use of updated versions of the Mobile Application and web based dashboard may be subject to new or additional Terms of Use. The Application and web dashboard allow a device compatible with the application and its related systems to report and display information to the user. The device may be installed on your tank or reservoir by us or our affiliates or authorized by us for use to connect your tank to the services we offer you, including the functionalities of the Application and web based dashboard, namely the remote monitoring and displaying of tank levels and software updates or customized features. (the “Services”).
1. Conditions of use
You are only allowed to make use of the Application and the Services if you comply with the following:
(a) You shall only use the Services and the Application when it is safe to do so, and you shall only use them in compliance with the law and these Terms of Service. You are solely responsible for the use of the Services and the Application.
(b) If third parties use the Services and Application through your user account, you shall ensure that they only use the Services and the Application when it is safe to do so, and in compliance with the law and these Terms of Use. These Terms of Use apply to all users of your Connected Device. You are responsible and liable for all activities of users of your Connected Device, including all access to or use of the Services. Without limiting the foregoing, it is your responsibility to: (i) inform other users of your Device that their access to and use of the Services is subject these Terms of Use; and (ii) ensure that other users of your device comply with these Terms of Use.
(c) You shall obey all laws, traffic rules, and traffic regulations governing the operation of your vehicle and use of the Application and you 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 your 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.
(d) You represent and warrant that you have reached the age of majority in your 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.
(e) You shall be required to create an account to use the Services. You shall (i) provide accurate and complete information; (ii) keep your account and password confidential under your sole supervision; (iii) notify us immediately of any breach of security or unauthorized use of your account using our contact information; and (iv) agree to and abide by the Privacy Policy.
(f) As a condition to your use of the Services and the Application, you agree not to: (i) access, tamper with, or use any non-public areas of the Services, Application or our 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.
2. The Services
(a) The Services are provided free of charge or for a fee to purchasers and or users of the device. It is understood and agreed that these Terms of Use are personal to you.
(b) We may suspend or discontinue your access to some or all of the Services and some or all of the functionalities of the Application as provided for in these Terms of Use.
(c) We may access, modify or update the software used to deliver the Services and the Application or used by your device without additional notice or consent.
(d) Services may be available for your device that collect data from your tank and or systems and provide you or third parties such as your supplier with diagnostic, usage and level or inventory notifications. Any such services are provided as is and do not report all conditions that may affect the operation of your device. For example, and not limiting the generality of the foregoing, conditions occurring while your device is off or conditions that develop rapidly may not be reported using such services.
(e) Your device must be operational for the Services to be provided, including, but not limited to, a working electrical system (including adequate battery power). Furthermore your device must be installed properly and in conformity to the installation instructions. It is your responsibility to continue to monitor your tank levels directly on the gauge located on the tank. This device, the application and the web based dashboard does not replace readings directly taken from the gauge on your tank. This device, the application and web based dashboard must not be the sole monitoring method used by you or any user under any circumstances.
(f) Without limiting the scope and generality of these Terms of Use, the Services may not be provided if: (i) equipment on your tank isn't properly installed; (ii) you haven't maintained the equipment or your tank in good working order; (iii) you do not comply with all applicable laws; (iv) you try to add, connect or modify any equipment or software in your smartphone or device in which the application is installed (v) your tank or device is not compatible with the Services or the Application; (vi) your device is malfunctioning; and (vii) other problems arise that we cannot control that interfere with the delivery or quality of services, such as hills, tall buildings, tunnels, weather, design of your tank, damage to important parts of your device or tank, or wireless congestion or jamming.
(g) We are not obligated to provide any maintenance or support for the Services and Application, technical or otherwise. If we provide any such maintenance or support, we may discontinue them at any time with 60 day notice.
(h) We may access and review data relating to your use of the Services and Application for the purpose of ensuring the proper operation of the Services and Application and their various features, to ensure your compliance with these Terms of Use, or to comply with applicable law.
(i) All right, title, and interest in and to the Services and Application are and will remain our exclusive property. The Services and Application are protected by copyright, trademark, and other domestic and foreign laws concerning intellectual property. You may not reproduce, modify, or create derivative works based upon, distribute, sell, transfer, publicly display, publicly perform, communicate, or otherwise use or commercially exploit the Services.
(j) The Services may not be available throughout North America.
3. Disclaimer of Warranty and Limitation of Liability
(a) 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 YOUR JURISDICTION, BUT YOU AGREE THAT IT SHALL BE INTERPRETED TO ITS FULLEST EXTENT.
(b) THE SERVICES RELY ON WIRELESS COMMUNICATION NETWORKS. NOT ALL SERVICES ARE AVAILABLE EVERYWHERE, NOTABLY IN REMOTE OR ENCLOSED AREAS. YOU ACKNOWLEDGE AND AGREE THAT THE AREA YOU ARE USING THE DEVICE AND APPLICATION IN MAY AFFECT THE SERVICES THAT WE CAN PROVIDE TO YOU.
(c) WE ARE NOT A SUPPLIER OF ANY PRODUCTS OTHER THAN THE TANK LEVEL MONITORING DEVICE, THE APPLICATION AND SERVICES. YOU ARE ULTIMATELY RESPONSIBLE FOR YOUR TANK LEVEL MONITORING AND SHOULD NOT RELY SOLELY ON THE INFORMATION PROVIDED TO YOU BY US VIA THE APPLICATION. THE SERVICES ARE PROVIDED AS A CONVENIENCE.
(d) You agree to defend, indemnify, and hold us harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Services in breach of these Terms of Use or in any manner that is contrary to applicable laws.
4. Modification of the Terms of Use, Term and Termination
(a) You agree that we may at any time and at our sole discretion modify the Agreement. You specifically agree to: (i) review such modified Agreement; and (ii) to indicate your consent to the modified Agreement if you wish to accept and abide by the modified Agreement. If you do not accept the modified Agreement, we may cease to provide the Service to you after a period of sixty (60) days. Each such amendment (i) will be communicated to you at least thirty (30) days before its coming into force; (ii) set out the new section only, or an amended section along with the section as it read formerly; and (iii) set out the date the amendment comes into force.
(b) These Terms of Use apply from the date of your acceptance until the Services are cancelled or terminated by you or us as permitted in these Terms of Use.
(c) You may cancel your individual account at any time by stopping your use of the Application and Services and uninstalling them. We reserve the right to suspend or end the Service at any time at our discretion by providing you with at least sixty (60) days’ prior notice. If you breach this Agreement, we will have the right to terminate this Agreement and to deactivate your account immediately if we notify you of your breach and you do not remedy this within five (5) days.
(d) Upon termination or expiration of these Terms of Use, you must immediately stop using the Services and the Application. All provisions of these Terms of Use which by their nature survive the termination or expiration, shall survive termination or expiration of these Terms of Use.
5. General
(a) These Terms of Service shall be governed by and construed by the laws of the Province of Quebec, Canada and the laws of Canada applicable to contracts between Quebec residents and to be performed in Quebec. Any and all disputes arising out of this Agreement shall be brought before the Courts of competent jurisdiction in the district of Montreal, Province of Québec.
(b) If a particular provision of these Terms of Use is held to be invalid, the provision shall be deemed severed from these Terms of Use and shall not affect the validity of these Terms of Use as a whole.
(c) These Terms of Use are the entire and exclusive agreement between us regarding the Services and Application, and these Terms of Use supersede and replace any prior agreements between ourselves regarding the Services and the Application.
(d) We will be allowed to assign our obligations under these Terms of Use to any third party without requiring your consent.
(e) The Parties have expressly requested that these Terms of Use be drawn up in English and that all modifications thereof can be made in this language.
Service Level Agreement
AT OTODATA, IT’S OUR COMMITMENT TO PROVIDE YOU WITH
Unlimited reports and alerts.
Free online portal to increase your route efficiencies and reduce overall delivery costs by as much as 30%.
Free branded mobile app delivering real-time tank level to your clients.
Free portal training to make sure to brush up on your skills.
Free B2B marketing assistance to help you every step of the way.
DEFINITIONS
Critical Problem(s) means any condition in the unit that renders the service or operation substantially unusable or inoperative or so slow or otherwise degraded in performance as to be critically impaired for functional usability.
Major Problem(s) means any condition in the unit that results in degradation of routine service or operation.
Minor Problem(s) means any condition in the unit that is not a Critical or Major Problem that affects the service or operation.
Permanent Solution(s) means a resolution to a Problem that restores the service and operation of the unit without any loss of functionality.
Problem means a Critical Problem, Major Problem or Minor Problem and includes, for greater clarity, any problems encountered by Customer in the use of the unit.
Problem Report means Customer’s notice to Otodata, reporting the details of a Problem and Customer’s suggestion of how to reproduce the Problem.
Workaround(s) means a temporary resolution of a Problem, restoring the functionality of the affected unit until a Permanent Solution is implemented.
1. TECHNICAL SUPPORT SERVICES
1.1
Otodata will provide Workarounds and Permanent Solutions for all Problems and ensure that the Documentation and Specifications remain complete and accurate. Otodata will provide Technical Support for each unit for the life of the Agreement.
1.2
Customer will include the level of a Problem in the Problem Report. For greater certainty, Customer will categorize a Problem as a Critical Problem, Major Problem or Minor Problem at the time Technical Support is requested for such Problem. Otodata will respond according to the level of response for the Problem. Otodata will break down each Problem Report into unique issues and assign a tracking number to each issue (Case Number).
1.2.1
Whether Customer communicates a Problem Report via telephone, web-form, email or after-hours support, Otodata shall provide a response that acknowledges receipt of the Problem Report and advises that a Permanent Solution and/or a Work Around is underway via e-mail and/or telephone to Customer within: (a) 1 hour for Critical Problems and (b) 4 hours for Major Problems, from the time of Otodata’s receipt of the Problem Report. Until a Permanent Solution or Workaround is achieved, Otodata will make continuous, reasonable commercial efforts to resolve the Problem. Otodata agrees to provide the Permanent Solution or Workaround within the following number of days after Otodata’s receipt of the Problem Report: (a) five (5) days for a Critical Problem and (b) fourteen (14) days for a Major Problem.
1.2.2
Whether Customer communicates a Problem Report via telephone, web-form, email or after-hours support, Otodata shall provide a response that acknowledges receipt of the Problem Report and advises that a Permanent Solution and/or a Work Around is underway via e-mail and/or telephone to Customer within 8 hours from the time of Otodata’s receipt of the Problem Report. Until a Permanent Solution or Workaround is achieved, Otodata will make reasonable commercial efforts to resolve the Problem. Otodata agrees to provide the Permanent Solution or Workaround within thirty (30) days after its receipt of the Problem Report.
1.2.3
Otodata’s inability to reproduce a Problem on an Otodata-specified machine will not affect the level of Otodata’s response.
1.3
Permanent Solutions - The first Release issued after a Permanent Solution is achieved will contain the Permanent Solution.
1.4
Communications – Otodata will make available by telephone a reasonable number of technicians with working knowledge of the unit to provide Technical Assistance. Customer communications with the technicians may be supplemented by fax and secure email. Otodata shall also make available to Customer after-hours support which shall consist of an on-call service which enables Customer to obtain help from an Otodata support engineer outside the regular office hours set forth above. Upon execution of the Agreement, Otodata shall provide Customer with the applicable telephone number, fax number, after-hours telephone number and email address.
1.5
On the first of each month, Otodata will provide Customer with a written report describing all known Problems, resolutions and Workarounds. For resolved Problems Otodata will report the case number, the resolution implemented, the release date of the Permanent Resolution and Workarounds. For unresolved Problems Otodata will report the case number, resolution plan, and a description of Workarounds. No Problem will be considered resolved until Customer’s written acknowledgment and approval of the Permanent Resolution.
Contact Us
If you have any concerns, question or complaints please contact us at:
Otodata Wireless Network Inc.
1212 Louvain Ouest, Montreal, QC H4N 1G5
(514) 673-0244
1 (844) 763-3344
Last updated 2025/02/07
General Terms and Conditions of Sale
Clause 1. Notice
This General Terms and Conditions for Sale (“GTCS”) shall govern 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 go.otodata.com/en-us/terms-and-conditions.
Clause 2. Definitions
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, in conjunction with 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 includes 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 Customer issued 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
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.
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 Tank 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.
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.
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.
Clause 4. Delivery, Transfer of Risk and Title
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
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 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 agree 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
7.1. Standard Warranty
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.
7.1.2. Duration of Coverage. Five (5) years effective from the delivery date of the Products to Customer.
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.
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.
7.2. Disclaimer of Warranty on Services.
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 provided to optimize Customer’s tank delivery and picking up logistic operation. Customers are ultimately responsible for its tank level monitoring and should not reply solely on the information provided by Otodata via the application.
7.2.4. 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.
Clause 8. Termination
8.1. Termination for Default.
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 the Contract 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.
8.2. Termination for Bankruptcy or Insolvency.
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.
8.3. Termination for Convenience
8.3.1. Under “Purchasing Model”.
a) Either Party may cancel or terminate the Services at any time for convenience by giving the other Party forty-five (45) calendar days written notice.
b) Upon termination, Customer shall pay Otodata for any outstanding amount due for the Products and/or Services delivered to Customer up to the date of termination, and plus the cost incurred to Otodata for any materials and work in progress services up to the date of termination.
8.3.2. Under “HaaS ” or “TMaaS” Contract
a) None of the Party may terminate a Contract under HaaS or TmaaS Model without contractual default of the other Party. In the event of early termination by Customer for any reason, Customer shall be liable for all fees owed for remainder of the Initial Term or renewal term as applicable as set forth the executed HaaS or TmaaS Contract.
8.4. Surviving Provisions.
8.4.1. The provisions of the Contract and this Agreement relating to Confidentiality, Intellectual Property Rights, Limitation of Liability, Indemnities, 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.
Clause 9. Intellectual Property Rights
9.1. Background IP Right
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.
9.2. Foreground IP Right
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.
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 wilful 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, attorneys’ fees and any other 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.
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.
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.
12.3. 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.
12.4. 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.
12.5. 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.
Clause 13. Data Security and Privacy
13.1. Otodata is committed to protecting Customer’s privacy through organizational, physical and technological safeguards to prevent unauthorized access, loss, misuse, disclosure or modification of the personal information.
13.2. Otodata collect only the personal information reasonably required to provide Products and/or Services under this Agreement or an executed Contract between the Parties and to improve Customer experience for the purposes permitted or required by applicable laws.
13.3. By using Otodata Products and/or Services, Customer consent to the collection, use and sharing of its personal information as described in Otodata Data Security and Privacy Policy (link to be insert here). Otodata shall obtain Customer’s consent when using Customer’s personal information for a purpose other than those identified in this policy or otherwise at the time of collections, for example in a specific consent form or in terms and conditions of a Service to which Customer subscribed.
13.4. Otodata may update this policy from time to time. Any changes made will be effective when the revised policy is posted in the webpage of Otodata Customer Portal or will be informed to Customer when the change made is required by applicable laws.
Clause 14. Force Majeur
14.1. Definition. Neither Party shall be held liable or responsible to the other Party nor be deemed in default under or breached the Contract including this Agreement or MSA and a SOW for failure or delay in fulfilling or performing any term of the Contracts to the extent, and for so long as, such failure or delay is caused by or results from unforeseeable, irresistible, unavoidable events beyond the reasonable control of the affected Party including but not limited to: fire, flood, earthquake, explosion, strike, war, epidemics, sabotages, riots, acts of terrorism, acts of God, 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. 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.
Clause 15. Governing Law
15.1. 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.
Clause 16. Language
16.1. It is the express wish of the parties that this Agreement and any related documentation be drawn up in English. Il est de la volonté expresse des parties que cette convention ainsi que tout document connexe soient rédigées en langue anglaise.
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