TERMS & CONDITIONS OF SALE   [Rev. February 2016]

Subject to the terms of any other applicable written agreement you (“you” or “Company”) have with Trimble, Inc. or any other Trimble, Inc. affiliate (collectively, “Trimble”), Telog's sale of Products and provision of Software are governed by these terms and conditions of sale (“Terms”).  These Terms include the Basic Order Terms (defined below) specified on an order accepted by us. “Telog”, “we” or “us” means Telog Instruments, Inc or its affiliate identified on our order acknowledgment. Every order you place with us is conditioned upon and confirms your acceptance of these Terms.  Any contrary terms or conditions appearing on your orders or associated purchase documentation will be of no effect. No waiver, modification, or addition to these Terms, or any assignment of your rights or obligations under them is valid or binding on us unless in writing and signed by our authorized representative.  These Terms and the other applicable agreements you enter into with Telog constitute the entire agreement between you and Telog for your purchase and use of Products and Software. Each accepted order will be interpreted as a single set of Terms, independent of other orders.

1. Definitions. "Products" means hardware products provided hereunder. "Software" means any software, library, utility, tool, or other computer or program code, in object (binary) or source-code form, as well as the related documentation, provided by Telog to you. Software includes Product firmware, software locally installed on your systems and software accessed by you through the Internet or other remote means (such as websites, portals, software-as-a-service (“SaaS”) and "cloud-based" solutions). "Services" means any services provided by Telog as described in one or more Service Agreements. "Service Agreements" are service contracts such as for support & maintenance or professional services, "Statements of Work," and any other such mutually agreed upon documents. These Terms do not apply to Service Agreements which have their own terms and conditions.

2. General.

2.1  Quotes, Validity of Orders: Our quotations are non-binding unless otherwise expressly stipulated in writing. Orders are accepted as valid and binding only when confirmed by us in writing. Orders cannot be canceled for any reason without our prior written consent.

2.2  Basic Order Terms: All orders must include the following information: (i) the Products and Software ordered and quantities, (ii) Telog part number(s), (iii) prices, and (iv) delivery instructions, (collectively, “Basic Order Terms”).  All Basic Order Terms are fixed and final upon our acceptance of the order.

2.3  Software Licenses.  All Software is licensed or provided as a service and is not sold.  Software is subject to the separate agreements provided by Telog in connection with the Software, including but not limited to any software licenses, product guides, operating manuals or other documentation (such as an End User License Agreement (“EULA”), Terms of Use or Terms of Service) (collectively, “User Agreements”). You agree that you will be bound by such User Agreements.  If there is a conflict or inconsistency between these Terms and those of a User Agreement,  the terms of the User Agreement will control. If a User Agreement or other license terms do not accompany Software included with a Product or Service, then Telog hereby grants you a personal, non-exclusive, revocable, non-assignable right to access and use such Software solely as necessary for you to enjoy the benefit of the Product or Service. Nothing in these Terms shall be construed to grant any rights or license to use any Software in any manner or for any purpose not expressly permitted by the applicable User Agreement.

2.4  Modem Technology Assurance Plan:  If you have purchased a Modem Technology Assurance Plan (“MTAP”) for one or more of your Recording Telemetry Units (“RTUs”), then your MTAP is subject to these Terms and the Modem Technology Assurance Plan Addendum.

2.5. Third Party Products. Telog may sell Products that are provided by third parties, either on a stand-alone basis or in combination with software or services provided by Telog, Trimble or a third party.  Additional terms applicable to certain third-party Products are attached as Exhibit A and incorporated into these Terms and Conditions by this reference.

3. Delivery.

3.1 Delivery time:   Delivery times are established when Telog accepts your order in writing.  We will use commercially reasonable efforts to meet your requested delivery dates, unless you are in default under these Terms or our performance is otherwise excused.  We are not liable for late or delayed delivery. Late delivery is not a basis for your cancellation of any order.

3.2  Delivery terms: Title and risk of loss or damage to Products passes to you when we deliver the Products to the shipping carrier ("Delivery").  Unless otherwise agreed, we will deliver the Product freight prepaid, provided that you pay or reimburse us for all applicable costs of carriage, freight, insurance (if applicable), taxes, duty and other related shipping charges.  We have the right to make partial deliveries. Software may be delivered electronically at Telog’s option. Title to the Software will remain with Telog or its licensors.

4.  Acceptance, Inspection, Notice of Nonconformance:

4.1 Your acceptance of ordered Products is deemed to occur upon our Delivery of the Products to the shipping carrier. Your acceptance of ordered Software is deemed to occur when the Software is activated or otherwise made available for your access or use, whichever date is earlier.  You are responsible for giving prompt written notice of identified damage or nonconformance of Products. You must inspect the condition of the packaging and the Products upon receipt and indicate any evident damage to the carrier on the delivery note, have the carrier's agent sign the document and, within two (2) days of receipt of the damaged or non-conforming Products, send all documents by e-mail or fax to our facility from which shipment took place, together with the carrier's references. Concealed Product damage claims must be made by you to the carrier directly and you must also provide us with written notice and a copy of any such claim within 10 days of receipt of the affected Products. Likewise you must notify us within 10 days of receipt of incorrect Products. If you retain the Product without giving notice within the designated notice period, you will be deemed to have waived your right to reject the Product.

4.2 If you cancel an accepted Product order within 10 days prior to shipment or reject conforming Products received under an accepted order, we are entitled to claim reasonable compensation for restocking and other expenses actually incurred.    

5. Return of Product: All Product returns are subject to our prior written consent and must comply with our product return (RMA) procedures then in effect. (For general information log on to http://support.trimble.com and submit a support case detailing your question.) Before returning or exchanging a Product, you must contact us directly to obtain an authorization number to include with your return. You must return Products to us in their original or equivalent packaging, and you are responsible for risk of loss, as well as shipping fees back to Telog.  Products received but not eligible for return will be sent back to you freight collect. For approved returns you will receive credit equal to the lesser of the Product’s invoice price or its current replacement value, less any applicable charges or fees.

6. Pricing, Terms of Payment, Taxes:

6.1 Unless we state otherwise in writing, payment terms are net 30 days from our invoice date.   You will make payment in the currency indicated on the invoice. We are entitled to offset payments against prior debt balances in your account. Products, Software or Services purchased or licensed under our United States General Services Administration ("GSA") Schedules are subject to all of the pricing and other  terms and conditions described in the applicable GSA Schedule.

6.2  We have the continuing right to review your credit and change your payment terms, and may at any time demand advance payment, satisfactory security (such as, but not limited to, a confirmed, irrevocable letter of credit acceptable to us), or a guarantee of prompt payment prior to shipment or service activation.

6.3  We reserve the right to charge interest on all overdue sums owing to us under these Terms at the rate of 1.5% per month (or the highest legal limit if lower than said amount), measured from the date the sums in question became payable to the date on which we receive full payment.

6.4 You grant us a purchase money security interest in each Product delivered to you until payment is made in full to us for such Products.  Upon request, you will cooperate with us in perfecting any such security interest.

6.5 You are liable for any costs incurred by us if you change or cancel any order, and for all costs of collection of past due amounts (including attorneys fees).  

6.6 Our stated prices for Products and Software do not include applicable sales taxes, Value Added Tax, export or import charges, transportation or insurance charges, customs and duty fees, personal property taxes or similar charges, all of which are your responsibility to pay. Unless you provide us with direct payment authority or an exemption certificate valid in the jurisdiction to which the Product will be delivered, you shall pay us all taxes and governmental fees we are required to collect or pay upon sale or delivery of the Product.

6.7 Additional Payment Terms for SaaS Service Subscriptions; Fixed Subscription Periods; Fees

6.7.1 Software-as-a-Service Subscription Plan Options.  Service subscriptions to Software-as-a-Service (“Service Subscriptions”) are sold and distributed under various service plan options (the “Service Plan(s)”) that, for example, offer different subscription periods and prices, or different license, user and geographical restrictions.  Your use of such Software will be subject to the Service Plan option conditions applicable to the Service Subscription(s) you purchase or otherwise acquire.  Additionally, you acknowledge and agree that if a Service Plan to which you have subscribed is “unbundled”, (meaning that your Service Subscription does not come with pre-paid communications carrier services arranged and provided for by Telog), Telog is not, and you are solely responsible for the terms, conditions and obligations (payment and otherwise) arising from agreements between you and any communications carrier and your use of communications carrier services in connection with the Software service, including without limitation, any wireless data overage charges resulting from your use of a public network connection.

6.7.2 Fixed Service Subscription Period and Renewal.  Unless otherwise specified in your particular Service Plan, Service Subscriptions are contracted on an annual basis for a fixed term of 12 months (each, a “Service Subscription Period”).  Your initial Service Subscription Period commences on the earlier of the date of purchase of your Service Subscription or the date of service activation.  Applicable service fee charges are due and payable in advance, either annually or monthly, depending upon the payment terms specified for the Service Subscription.  

    All charges payable on a monthly basis will be billed in the current month.  Charges for additional Service Subscriptions or seats purchased by you and activated during any Service Subscription Period may be pro-rated to allow Telog to bill for all of your Service Subscriptions on the same date.  If Telog authorizes you to pay the fees via credit card, you authorize Telog to charge the credit card in accordance with your Subscription Plan, and you must maintain current credit card information with Telog at all times.  If your payment is 30 days or more overdue, in addition to any of its other rights or remedies, Telog reserves the right to suspend your access to the Software service.

   At expiration of any Service Subscription Period, your Service Subscription will automatically renew for a new 12 month fixed term unless you directly cancel that Service Subscription electronically prior to renewal or otherwise notify Telog in writing of your intention to cancel your Service Subscription no less than 30 days prior to expiration of the then current Service Subscription Period. Subject to any contrary terms appearing in the User Agreement associated with the particular SaaS service offering, monthly and annual contracts cancelled in the Telog store are cancelled immediately with no refunds for any unused period.

   Fee Adjustments.  Telog may increase the fees it charges for its Service Subscriptions at any time, but any increase in the fees will not take effect until the beginning of your next Service Subscription Period.  Your continued use of the Subscription Services following such a pricing increase will constitute confirmation of your acceptance of the pricing increase, unless you notify Telog in writing within 30 days thereof that you do not accept the additional charges.  In such case, the pricing in effect at the time of your purchase or last renewal of the Service Subscription (whichever is later) will remain in effect through the remainder of the then current Service Subscription Period, unless Telog, at its option, exercises its right to terminate your Service Subscription(s) in accordance with the User Agreement associated with the Software service to which you have subscribed.

7. Limited Warranty:  

7.1 Products and Software:  Unless (i) the limited warranty included with a Product or (ii) the User Agreement accompanying any Software grants you different rights or disclaims all warranties, we warrant to you, and only to you, as applicable, (a) that our Products are designed and manufactured to conform to our specifications and will be free from defects in material and workmanship for a period of 12 months from date of Delivery, and (b) that our Software will substantially conform to the functional specifications and current documentation provided by Telog for a period of 90 days.  During the warranty period, our liability and your exclusive remedy is limited, at Telog’s option, to replacing, repairing, correcting, or issuing credit for any Product or Software subject to the warranty in this Section 7.1, which upon inspection we determine is non-conforming.

7.2 Warranty Exclusions:  The foregoing limited warranty only applies if and to the extent that (a) the Product or Software is properly and correctly installed, configured, interfaced, maintained, stored, and operated in accordance with our applicable documentation and specifications, and (b) the Product or Software is not modified or misused. This limited warranty does not apply to, and we are not responsible for defects or performance problems resulting from (i) the combination or use of the Product or Software with hardware or software products, information, data, systems, interfaces or devices not made, supplied or specified by us; (ii) operating the Product or Software under any specification other than, or in addition to, our standard specifications for them; (iii) the unauthorized installation, modification, repair or use of the Product or Software; (iv) damage caused by accident, lightning or other electrical discharge, fresh or salt water immersion or spray (outside Product specifications); or exposure to environmental conditions for which the Product or Software is not intended; (v) normal wear and tear on consumable parts (e.g., batteries) or (vi) cosmetic damage. We do not warrant or guarantee the results obtained through the use of the Product or Software.  WE MAKE NO WARRANTIES UNDER THESE TERMS WITH RESPECT TO SERVICES, WHICH IF PROVIDED HEREUNDER ARE PROVIDED “AS-IS”.

NOTICE REGARDING PRODUCTS EQUIPPED WITH SATELLITE OR WIRELESS TECHNOLOGY. Your use of certain Products and Software is dependent on the availability and coverage of wireless networks, telecommunications networks, satellite positioning systems and the Internet, which involve facilities owned and operated by third parties.  WE ARE NOT RESPONSIBLE FOR THE OPERATION, AVAILABLITY OR FAILURE OF SUCH THIRD PARTY SYSTEMS OR FACILITES.   

7.3 WARRANTY DISCLAIMER:  THE FOREGOING LIMITED WARRANTY TERMS ARE IN LIEU OF ALL OBLIGATIONS OR LIABILITIES ON OUR PART ARISING OUT OF, OR IN CONNECTION WITH, OUR PRODUCTS AND SOFTWARE AND STATE OUR ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDIES RELATING TO THEM. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS, THE PRODUCTS AND SOFTWARE AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED "AS-IS" AND WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND, EITHER BY US OR ANYONE WHO HAS BEEN INVOLVED IN ITS CREATION, PRODUCTION, INSTALLATION, OR DISTRIBUTION, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NONINFRINGEMENT. ADDITIONALLY, WE MAKE NO EXPRESS OR IMPLIED WARRANTY THAT SOFTWARE PROVIDED TO YOU IN CONNECTION WITH THESE TERMS, IS OR WILL BE SECURE, ACCURATE, COMPLETE, UNINERRUPTED, FREE OF ERRORS, OR FREE OF VIRUSES, OR OTHER MALWARE OR PROGRAM LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE ABOVE LIMITATION MAY NOT APPLY OR FULLY APPLY TO YOU.  IF YOU ARE A RESELLER OF THE PRODUCTS OR SOFTWARE YOU SHALL NOT MAKE OR PASS ON TO YOUR OWN CUSTOMERS ANY WARRANTY, CONDITION OR REPRESENTATION ON BEHALF OF US OTHER THAN, OR INCONSISTENT WITH, THE APPLICABLE LIMITED WARRANTY IN THE PRODUCTS AND SOFTWARE PROVIDED TO YOU.

PLEASE NOTE: THE ABOVE LIMITED WARRANTY PROVISIONS WILL NOT APPLY TO PRODUCTS YOU PURCHASE IN THOSE JURISDICTIONS IN WHICH PRODUCT WARRANTIES ARE THE RESPONSIBILITY OF THE LOCAL DISTRIBUTOR FROM WHOM THE PRODUCTS ARE ACQUIRED.  IN SUCH CASE, PLEASE CONTACT YOUR TELOG PRODUCT DEALER FOR APPLICABLE WARRANTY INFORMATION.

8.  Warranty Procedures:

8.1 Warranty Repair Procedure: If any Product fails during the warranty period for reasons covered by our limited warranty and you notify us of such failure during the warranty period, we will at our option repair or replace a nonconforming Product with new, equivalent to new, or reconditioned parts or Product or, if either of the foregoing is commercially impractical in Telog’s determination, refund the Product purchase price you paid (excluding separate costs of installation, if any) upon your return of the Product in accordance with our product return procedures as referenced in Section 5 above.  Any repaired or replaced Product will be warranted for a period of 30 days or the remainder of the original warranty period, whichever is longer. We may, in our sole discretion, arrange for fulfillment of our warranty obligations through a Telog affiliate, authorized distributor or an authorized warranty service center.

8.2 Determination of Warranty Applicability:  We reserve the right to refuse warranty services if the Product or Software date of purchase cannot be proven, if a claim is made outside the warranty period or if a claim is excluded under Section 7.2 above. Following our examination of your claim, we will notify you of warranty status and the repair cost of any out-of-warranty Product. At such time you must issue a valid purchase order to cover cost of the non-warranted Product repair and return freight, or authorize return shipment of the Product at your expense as-is.

8.3 Not Responsible for Lost Data.  We are not responsible for any modification or damage to, or loss of any programs, data, or other information stored on any media or any part of any Product serviced by us, or stored or hosted by us in connection with a Software service we provide, or for the consequence of such damage or loss, (such as business loss in the event of system, program or data failure.)  You are solely responsible for backing up data and removing all features, parts, alterations, and attachments not covered by warranty prior to releasing the Product to Telog for service or seeking Software support. Any Product or Software sent to Telog for support may be returned to you configured as originally provided to you by Telog.

9.  LIMITATION OF LIABILITY:  OUR ENTIRE LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS IS LIMITED TO THE AMOUNTS YOU ACTUALLY PAID TO US UNDER THE TERMS.  FURTHER, NEITHER WE NOR OUR SUPPLIERS ARE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE DAMAGES OR OTHER DAMAGES, OR LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF USE OF THE PRODUCTS OR SOFTWARE OR ANY ASSOCIATED EQUIPMENT, COSTS OF COVER, DOWNTIME AND USER TIME OR FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITIONS, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THE PRODUCTS OR SOFTWARE. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, ANY IMPLIED WARRANTY OF SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE APPLYING TO THE PRODUCTS OR SOFTWARE IS LIMITED IN DURATION TO THE DURATION OF THE WARRANTY SPECIFIED IN SECTION 7, ABOVE. YOU AND WE AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR TELOG’S SALE OF PRODUCTS TO YOU, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIFIED OTHER DAMAGES, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY, OR MAY NOT FULLY APPLY TO YOU.

10.  Intellectual Property Ownership:  You agree that Telog owns all right, title and interest to all intellectual property and other proprietary rights to documents and materials, calculations, drawings, models, plans, sets of tools, technology, software, designs, engineering details, schematics and similar data relating to or incorporated in the Products and Software and any accompanying documentation or information derived from the foregoing.  You shall take reasonable precautions to prevent unauthorized access and use of the Software and documentation by third parties. To the extent permitted by relevant law, you shall not, nor allow any third party to copy, decompile, disassemble or otherwise reverse engineer the Products or Software, or attempt to do so. You are prohibited from, and shall prevent any third party from, removing, covering or altering  any of our patent, copyright or trademark notices placed upon, embedded in or displayed by the Products or Software or their packaging and related materials. We reserve all rights in the Products and Software not specifically granted to you under these Terms.

11. Government End Users-Restricted Rights. The Software and its associated documentation are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212.  Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 12.227.7202-1 through 227.7202-4, all U.S. Government end users acquire the software and documentation with only those rights set forth in the User Agreement for such Software.

12.  Export Control:  You are responsible for complying with all applicable export and import regulations and obtaining all necessary export and import licenses or permits for the direct or indirect export or import of any Product.  Without limiting the generality of the foregoing, you hereby acknowledge and agree that these commodities, technology, software, products, and/or proprietary information were exported from the United States in accordance with the Export Administration Regulations. In the exercise of your rights, and the performance of your obligations under this Agreement, you shall comply strictly with all U.S. export control laws and regulations applicable to the Products and Telog proprietary information, and shall not export, re-export, transfer, divert or disclose any such Products or proprietary information, or any direct product thereof, to any destination restricted or prohibited by U.S. export control laws, or to any national or resident thereof.  You will defend, indemnify and hold Telog harmless against any liability (including attorneys’ fees) arising out of your failure to comply with the terms of this paragraph.  Customer’s failure to comply with any term of this paragraph shall constitute a material breach of these Terms and entitle Telog to immediately terminate this agreement for your purchase and use of Products and/or Software in addition to any other remedy available at law or equity.

13.  Default:  We reserve the right by written notice of default to cancel or indefinitely suspend an accepted order and to refuse additional orders if: (i) you default in performing your obligations under these Terms, (ii) you cease business operations or enter into any bankruptcy, insolvency, receivership or like proceeding not dismissed within 30 days, or assign your assets for the benefit of creditors, or (iii) when obtaining third-party financing in connection with your Product purchase(s) you fail to do so in a timely manner on terms satisfactory to us.

14. Applicable law - Settlement of Disputes:  

These Terms and any dispute, claim or controversy arising therefrom shall be governed by the laws of the country, state and province in which we have our principal place of business, namely for Telog Instruments, Inc or any affiliated company in the United States the laws of the State of California and applicable United States federal law, without reference to “conflict of laws” principles, unless expressly prohibited by local law. The United Nations Convention on Contracts for the International Sale of Goods will not apply.   No dispute or legal action arising under these Terms, may be brought by either party more than one (1) year after such cause of action accrued, except that an action for nonpayment may be brought within two (2) years of the date of the last payment.

15.  Severability:  These Terms may be severable and the invalidity, illegality or unenforceability in whole or in part of any provision does not affect the validity of other provisions.  

16.  Force Majeure:  Neither party will be liable for non-performance (except for payment obligations) due to causes beyond its reasonable control, provided that such party promptly notifies the other in writing of such occurrence and makes its best efforts to promptly eliminate the effect thereof.

17.  Online Privacy :  Our Privacy Statement is published at http://www.trimble.com/privacy.aspx and incorporated herein by this reference.  

18.  Notices:  Any notice or other communication given by either party to the other regarding these Terms will be deemed given and served when personally delivered, delivered by reputable international courier requiring signature for receipt, or five (5) business days after mailing (postage prepaid), addressed to the party at its notice address. Either party may change its notice address by written notice to the other. Your notice address will be the address appearing on the accepted purchase order.  Our notice address is: Telog Instruments, Inc.,830 Canning Parkway, Victor, NY 14564, USA, Attn: Business Operations Director, with a copy to: Trimble Navigation Limited, Attn: General Counsel, 935 Stewart Drive, Sunnyvale, CA 94085, USA.

19.  Waste Electrical & Electronic Equipment (WEEE):  If the Products are furnished to you as component products on an OEM basis, or for import, resale or distribution to third parties, then you agree that you qualify as, and are deemed the “producer” of all such Products under any laws, regulations or other statutory scheme providing for the marking, collection, recycling, take-back, and/or disposal of electrical and electronic equipment (“WEEE Regulations”) in any jurisdiction whatsoever, (e.g., national laws implementing EU Directive  2012/19 on waste electrical and electronic equipment, recast), and are solely responsible for complying with all such applicable WEEE Regulations in connection with those Products and for all associated costs.

20. Official Language:  The official language of these Terms is English.  If there is a conflict between versions of these Terms in any other language, the English language version controls.

# # #

Exhibit A

to Telog Instruments Inc. Terms and Conditions of Sale

Additional Terms and Conditions for the Use of Products Provided by or Including Software, Products or Services of Aquarius Spectrum Ltd.

THE SERVICES, WHICH ARE PROVIDED FOR USE SOLELY IN CONJUNCTION WITH THE DESIGNATED AQUARIUS SPECTRUM LTD. HARDWARE, ALONG WITH ALL HARDWARE, SOFTWARE, PRODUCTS AND SERVICES PROVIDED THEREWITH (COLLECTIVELY, THE “SYSTEM”) IS PROVIDED TO COMPANY ON AN “AS IS” AND “AS AVAILABLE” BASIS. NEITHER TRIMBLE, NOR ITS DISTRIBUTORS, RESELLERS, AGENTS, SUB-CONTRACTORS, NOR ITS SUPPLIER, AQUARIUS SPECTRUM LTD. (SEPARATELY AND COLLECTIVELY “SUPPLIER”) MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE CORRECTNESS, QUALITY, ACCURACY, SECURITY, COMPLETENESS, RELIABILITY, PERFORMANCE, TIMELINESS OR CONTINUED AVAILABILITY OF THE SYSTEM OR THE ABILITY OF ANY CONNECTION OR COMMUNICATION SERVICE TO PROVIDE OR MAINTAIN ACCESS TO THE SYSTEM. EXCEPT FOR THE WARRANTY PROVIDED TO COMPANY FOR THE HARDWARE, SUPPLIER HEREBY DISCLAIMS AND COMPANY HEREBY WAIVES ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY OF NONINFRINGEMENT OF THIRD PARTIES' RIGHTS OR THAT THE SYSTEM WILL BE PROVIDED ERROR FREE OR WITHOUT INTERRUPTION OR THAT THE SYSTEM WILL MEET COMPANY’S REQUIREMENTS OR EXPECTATIONS. SUPPLIER SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS WITH RESPECT TO ACCURACY. NO THIRD PARTY, DISTRIBUTOR, RESELLER, AGENT, OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY.

WITHOUT DEROGATING FROM THE GENERALITY OF THE FOREGOING, IT IS EXPRESSLY CLARIFIED THAT THE SYSTEM IS A SUPPORTIVE TOOL WITH RESPECT TO THE DETECTION AND MANAGEMENT OF LEAKS IN WATER SYSTEMS, AND SHOULD NOT BE RELIED UPON EXCLUSIVELY. THE MANNER BY WHICH ANY SPECIFIC LEAK SHOULD BE HANDLED AND/OR REPAIRED IS DEPENDENT ON NUMEROUS FACTORS WHICH ARE OUTSIDE OF THE SCOPE OF THE SYSTEM'S CAPACITY AND WHICH SHOULD BE SEPARATELY ADDRESSED AND CONSIDERED BY COMPANY, AT COMPANY’S SOLE RESPONSIBILITY. UNDER NO CIRCUMSTANCES WILL SUPPLIER, ITS SHAREHOLDERS OR ANY OTHER PARTY ACTING ON SUPPLIER’S BEHALF BE LIABLE FOR ANY DAMAGE, LOSS OR EXPENSE (INCLUDING PHYSICAL INJURIES) WHICH MAY BE CAUSED TO COMPANY, ANYONE ACTING ON COMPANY’S BEHALF, OR ANY THIRD PARTY IN CONNECTION WITH THE USE OF OR RELIANCE ON THE SYSTEM, INCLUDING WITHOUT LIMITATION ANY DAMAGE, EXPENSE OR LOSS CAUSED AS A RESULT OF WATER LEAKS OR BURSTS, DAMAGES TO PIPING SYSTEMS AND/OR THE LIKE. IN ADDITION, SUPPLIER MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO FAULT-FREE OPERATION OF THE SYSTEM AND SHALL NOT BEAR ANY LIABILITY OR RESPONSIBILITY WHATSOEVER FOR DAMAGES OR LOSSES CAUSED BY OR ATTRIBUTABLE TO INACCURATE OR ERRONEOUS MEASUREMENTS, INCLUDING WITHOUT LIMITATION WHEN THIS RESULTS FROM AN ERROR OF THE SYSTEM.

UNDER NO CIRCUMSTANCES WHATSOEVER WILL SUPPLIER BE LIABLE IN ANY WAY FOR ANY DAMAGE OR LIABILITY ARISING FROM (I) ANY CONTENT (WHETHER PROVIDED BY SUPPLIER OR UPLOADED BY COMPANY), INCLUDING, WITHOUT LIMITATION, FOR ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR FOR ANY INFRINGEMENT OF THIRD PARTY'S RIGHT, LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE CONTENT AND/OR THE SYSTEM; (II) SYSTEM DEFECTS RESULTING FROM THE USE OF THIRD PARTY PRODUCTS OR SERVICES; (III) FAILURE OF COMMUNICATION BY A GSM PROVIDER OR ANY OTHER COMMUNICATIONS PROVIDER; OR (IV) THE UNAUTHORIZED OR EXCESSIVE USE OF THE SYSTEM OR USE OF THE SYSTEM IN A MANNER INCONSISTENT WITH THESE TERMS.

LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUPPLIER WILL NOT BE LIABLE TO COMPANY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS, SUPPLIER’S LIABILITY TO COMPANY, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE PRICE COMPANY PAID FOR THE PRODUCTS GIVING RISE TO THE LIABILITY.


Customer / end-user agrees that the limitations specified in this Section will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.  


TELOG INSTRUMENTS, INC. SUPPLEMENTAL TERMS & CONDITIONS

These Telog Instruments, Inc. Supplemental Terms and Conditions (the “Supplemental Terms”) supplement the Trimble Inc. & Conditions of Sale (“Terms”); both the Terms and Supplemental Terms govern your purchase and acquisition of Products and Software from Telog Instruments, Inc., a Trimble affiliated company.  Capitalized terms used in these Supplemental Terms have the meanings set forth in the Terms. In the event of a conflict between the express terms of the Terms and the Supplemental Terms, those of the Supplemental Terms will be controlling.

  1. Delivery & Shipping terms: Delivery of the Products will be made on an FCA (Incoterms 2010) seller's facility basis. Title and risk of loss or damage to the Products covered by these Supplemental Terms will pass to you when we deliver the Products to the shipping carrier at our facility dock ("Delivery").  Unless otherwise agreed, we will deliver the Product freight prepaid, provided that you pay or reimburse us for all applicable costs of carriage, freight, insurance (if applicable), taxes, duty and other related shipping charges.  We have the right to make partial deliveries. Software may be delivered electronically at our option. Title to the Software will remain with us or our licensors.


  1. Order Cancellation:  If you cancel an accepted order for Products or Software which has/have been specially produced, configured or customized for your use then we are entitled to claim reasonable compensation (up to the full amount of the order) for expenses (including labor, parts and materials costs) actually incurred.    


  1. Return of Product:  All Product returns are subject to our prior written consent and must comply with our product return (RMA) procedures then in effect as set forth at http://telog.com/Support/ServiceandTerms.aspx.  Before returning or exchanging a Product, you must contact us directly to obtain an authorization number to include with your return. You must return Products in their original or equivalent packaging, and you are responsible for risk of loss, as well as shipping fees back to us.  Products which have been deployed in the field must be cleaned and disinfected and accompanied by a certificate of cleaning in compliance with our RMA procedures. Products received but not eligible for return will be sent back to you freight collect.


  1. Product Firmware Updates:  We may from time to time develop Product firmware fixes, updates and upgrades for release to our customers generally. We will make available to you Product firmware Fixes and Minor Updates at no additional charge for a period of one (1) year following date of purchase of the Product(s), subject to our established procedures for delivery to our customers.  The foregoing does not include Major Upgrades to Product firmware, which may be made available for an additional fee.  For this purpose a “Fix” means an error correction or other update created to fix a previous firmware version that does not substantially conform to performance specifications in the Product documentation; a “Minor Update” is an enhancement made to current features in the firmware; and a “Major Upgrade means one or more significant new features added to firmware, or a new product containing new features that replaces the further development of a current product line.  We determine, in our sole discretion, what constitutes a Fix, Minor Update or Major Upgrade.   


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Modem TECHNOLOGY ASSURANCE PLAN ADDENDUM


Each Recording Telemetry Unit (“RTU”) for which you have purchased a Modem Technology Assurance Plan (“MTAP”) is eligible to receive one modem upgrade (e.g, 1XRTT to LTE/Category 1) within three years of your MTAP purchase date, subject to the following:


  1. The MTAP incorporates and is controlled by the applicable Order Form and the Terms and Conditions of Sale (“Terms”) for your RTU.

  2. The MTAP applies only to the RTUs identified on the Order Form for your MTAP.

  3. You must have paid the MTAP fees associated with your RTU.

  4. Each upgraded modem will be covered by Telog’s Limited Warranty (Terms sections 7 and 8) for the first 12 months from the date of delivery of the modem.

  5. The upgrade right expires for each RTU upon the first to occur of (i) your first upgrading of the modem for that RTU, or (ii) three years from the purchase date for the MTAP applicable to that RTU.

  6. The program description found at http://trimblewater.com