AUGURY
TERMS OF SERVICE
(for Facilities)
These Terms of Service constitute a binding agreement between Augury, Inc., a Delaware corporation (“Augury”), and the entity submitting the order (or the entity on behalf of which the individual submitting the order is acting) (“Customer”) that governs any and all purchases and use of the Devices and Services provided or made available by or on behalf of Augury to Customer.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE PURCHASING OR USING ANY DEVICES OR SERVICES.  BY SIGNING THE ORDER FORM, CUSTOMER ACKNOWLEDGES THAT IT UNDERSTANDS AND AGREES TO BE BOUND BY THESE TERMS OF SERVICE AND REPRESENTS AND WARRANTS TO AUGURY THAT THE INDIVIDUAL SUBMITTING THE ORDER FORM HAS THE LEGAL AUTHORITY TO BIND CUSTOMER.
Any terms or conditions included in any other documents, orders, specifications, requirements or communications issued or generated by Customer that are inconsistent with or in addition to this Agreement will be deemed stricken and are hereby rejected. This Agreement constitutes the entire agreement between Augury and Customer with regard to the sale and use of Devices and Services, and expressly supersedes and replaces any prior or contemporaneous understandings, agreements and representations, oral or written.
DEFINITIONS
“Agreement” means these Terms of Service and the applicable Order Form.
“Authorized Users” means Customer’s employees and authorized agents and any person servicing Customer's owned or leased machines, in each case who have a valid ID and password and are permitted to access and use the Services on behalf of Customer in accordance with this Agreement. 
“Devices” means Augury’s continuous monitoring device (‘Halo Devices’ or ‘Canary Devices’) that are provided by Augury for use in connection Augury’s Services, as set forth in the applicable Order Form (and, in unique cases, where specifically set forth in the Order Form, Augury’s portable diagnostics devices (‘Auguscope Devices’)). 
“Documentation” means Augury’s standard end-user documentation, as generally made available by Augury to its customers.
“Order Form” means the purchase order submitted by Customer and accepted by Augury for the purchase of Devices and a subscription to use the Services.
“Services” means Augury's predictive maintenance and diagnostics services for certain machines (including provision of certain data, information, recommendations and suggestions) that are made available through Augury’s web platform, on a software-as-a-service basis, via an Internet website or a downloadable mobile application, as set forth in Customer’s Order Form.
PURCHASE OF DEVICES AND USE OF THE SERVICES
Purchase of Devices. Customer will order Devices and access to the Services by submitting an Order Form to Augury.  Each Order Form is subject to written acceptance by Augury, and Augury’s acceptance of any Order Form is conditional on Customer’s unqualified assent to all terms and conditions in this Agreement.  Customer may not cancel or reschedule any Order Form placed with Augury, unless agreed by the parties in a written order form addendum describing the changes. Subject to Customer’s compliance with the terms and conditions of this Agreement, Augury will deliver the Devices specified on the Order Form to Customer at the location and in the quantities specified in such Order Form.
Grant of Rights. Subject to Customer’s compliance with the terms and conditions of this Agreement, including, without limitation, the timely payment of all fees set forth in the Order Form, Augury grants to Customer, during the Subscription Term, a limited, non-exclusive, non-transferable right to permit its Authorized Users to access and use the Services, strictly in accordance with the Documentation and any applicable law, and solely for purposes of Customer's maintenance of machines supported by the Services and that are owned or leased by Customer.
Account Set Up. To access and use the Services, Customer must sign up for an account (the “Account”) by accessing app.augury.com and following the instructions for completing the registration.  During the Account setup and registration process, Customer will be asked to provide certain credentials for each individual Authorized User, including username and password.  Customer will also receive one administrator ID and associated password that may be used by an authorized Customer employee to access, generate and manage certain account information and to issue usernames and passwords to Authorized Users, as set forth in the Documentation.  Each Authorized User may use only the Authorized User’s own individual user ID and will not permit any person to use such user ID.  Customer is solely responsible for providing accurate, complete and updated registration information and for maintaining the confidentiality of its (and its Authorized Users’) Account access credentials.  Customer further acknowledges and agrees that Customer is exclusively responsible for all activities that occur under its Account, including any unauthorized use of any username or password.  Customer will immediately notify Augury at support@augury.com of any unauthorized use of the Account or any other breach of security related to the Services of which Customer becomes aware.
Shipping. Title and risk of loss or damage to the Auguscope Devices will pass to Customer immediately upon delivery to the carrier. Title and risk of loss or damage to the Halo Devices will pass to Customer immediately upon installation. 
Set-Up. Promptly following execution of the Order Form for a new installation, Augury and Customer will work together to set up Customer in Augury’s system and prepare the site for deployment of the Augury Solution by the Subscription Start Date, including, for example, scheduling a site survey by Augury (if required) and ensuring availability of the required resources (electricity, Internet connectivity, etc.).
Installation. Devices require installation either by Augury’s personnel or contractors visiting Customer’s site or by Customer itself through Augury’s remotely-guided installation, as set out in the applicable Order Form. Customer will cooperate with Augury (or its representative or third party designees) to facilitate the installation of the Halo Devices ordered by Customer, including by way of giving access to Customer’s premises for such purpose, providing all required resources (electricity, Internet, etc.) and timely providing all data required by Augury in preparation for the installation (e.g., machines’ types, models, sizes, etc.). If installation of Devices is not completed on the scheduled installation data due to Customer’s failure to provide the cooperation required hereunder, then Augury may charge Customer for the added costs incurred by Augury as a result of such failure to cooperate. During the Subscription Term, Augury may periodically require access to Customer’s premises in order to ensure the Devices’ hardware is in good working order, and Customer shall permit Augury (or its representative) to access Customer's premises for such purpose.  If Customer ordered Auguscope Devices, Customer will connect such Devices according to instructions provided by Augury. Without limiting the foregoing, throughout the Subscription Term, Customer will be responsible to provide and maintain all required resources (electricity, Internet connection, etc.) as necessary for the Devices to access and enable the Services.
Support.  If set forth in the Order Form, Augury will provide Customer reasonable initial training in connection with use of the Services, at the time and date mutually agreed between the parties.  In addition, during the Subscription Term, Augury will provide technical support for the Devices and Services in accordance with the Order Form and Augury’s relevant standard support policy as in effect from time to time during the Subscription Term.  Upon request of Customer, Augury may provide additional training, support and professional services, at Augury’s then-current applicable fees. 
Updates. During the Subscription Term and at its sole discretion, Augury may provide bug fixes, error corrections, patches and other improvements to the Augury Technology that do not significantly change the functionality thereof (“Updates”). Updates to the Devices, if any, may be provided by Augury on an OTA (over-the-air) basis. Once made available to Customer, Updates will be deemed part of the Augury Technology under this Agreement. Maintenance of the hardware, including, without limitation, replacing batteries, shall be performed by Customer personnel according to instructions provided by Augury.  
FEES; PAYMENT
Fees. In consideration of the Devices and Services, Customer shall pay to Augury all fees set out in the Order Form, in accordance with the payment terms set forth therein.    Unless otherwise set forth in the Order Form, upon each annual anniversary of the Subscription Start Date during the Subscription Term (all as defined below), the fees will automatically increase by the percentage change in then-current CPI plus 3%. Overdue amounts shall bear interest at a monthly rate of 1.5%, compounded daily. As used herein, “CPI” means the Consumer Price Index, published by the U.S. Department of Labor's Bureau of Labor Statistics, based on the U.S. City Average for All Urban Consumers, for the published previous 12 months.
Billing. Unless the Order Form expressly states otherwise, billing for the first year of the Subscription Term for the Services will commence upon the Subscription Start Date and continue on an annual recurring basis thereafter during the Subscription Term.  Unless otherwise agreed by the parties, Augury may consolidate billing for outstanding Subscription Terms such that all monitored machines will be on the same invoicing cycle.  All payments will be due and payable to Augury within thirty (30) days of the applicable invoice date.  All payments are non-refundable.  Invoices will be issued by Augury or an Augury Affiliate, as determined by Augury. 
Taxes. The Fees set out in the Order Form exclude, and Customer shall be responsible for and pay, all sales, use, value added and similar taxes as required by applicable law.  Customer shall make payment of all amounts due to Augury without withholding or deduction of any taxes or other government charges, except as required by law.
TERM & TERMINATION
Term and Renewal.  This Agreement takes effect upon execution of the Order Form and, unless terminated earlier as set forth in this Section, will continue in effect until expiration or termination of the Subscription Term in accordance with this Section 4.  The initial Services period will commence upon the subscription start date set forth in the Order Form (the “Subscription Start Date”) and continue for the period set forth in the Order Form  (the “Initial Subscription Term”).  Thereafter, unless otherwise set forth in the Order Form, the Initial Subscription Term will automatically renew for subsequent periods of the same duration as the Initial Subscription Term (each, a “Renewal Subscription Term,” and collectively with the Initial Subscription Term, the “Subscription Term”), unless either party provides the other with written notice of its intent not to renew at least ninety (90) days prior to the end of the Initial Subscription Term or the then-current Renewal Subscription Term.
Termination. Either party may terminate this Agreement if: (i) the other party has materially breached this Agreement (including, without limitation, non-payment of any fees due under this Agreement) and failed to cure such breach within thirty (30) days after receiving written notice from the non-breaching party describing the nature of the breach; or (ii) the other party is adjudicated bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party, or any petition by or on behalf of such party is filed under any bankruptcy or similar laws. 
Effect of Termination. Upon expiration or termination of this Agreement for any reason: (i) Customer (and its affiliates) shall immediately cease using the Devices and Services; and (ii) all payments due hereunder by Customer shall become immediately due and payable. Sections ‎3.3, ‎4.3, ‎5, ‎6.4, ‎7, ‎8 and ‎10 will survive expiration or termination of this Agreement for any reason.
PROPRIETARY RIGHTS
Devices and Services. Customer acknowledges and agrees that while Customer will have ownership of the physical Devices that it purchases under this Agreement, Augury exclusively owns and will retain all intellectual property rights in the Devices, Services, Documentation, any underlying software or software incorporated in or delivered with the Devices or Services, and in any and all other hardware, software, mobile applications, algorithms, platforms, services, documentation and other technology developed, supplied or made available by Augury (alone or with others) and including any updates, enhancements, improvements and derivatives to or of any of the foregoing (collectively, “Augury Technology”).  Customer agrees that Augury will be free to use any feedback or input provided to Augury by Customer in relation to any Augury Technology will be and remain the exclusive property of Augury. 
Data. As used herein, “Usage Data” means any and all (a) technical and performance data and information collected, generated, stored or transmitted by Devices and Services in connection with Customer’s use thereof (e.g., vibration, temperature, ultrasound and magnetic field data), and (b) content, data, images and other materials relating to Customer’s machines or use of the Services that are uploaded by Customer to Augury’s platform, and any data derived from any of the foregoing, but excluding Customer Data; and “Customer Data” means Customer’s proprietary business data (such as, by way of example, number of machines or buildings), and any personally identifiable information relating to Authorized Users. Customer acknowledges that the use of the Devices and Services collects and generates Usage Data and Customer Data. As between the parties, Customer will own all Usage Data and Customer Data; however Customer hereby grants Augury (and its affiliates): (i) during the Subscription Term, a nonexclusive, worldwide, royalty-free license to use the Usage Data and Customer Data to provide the Services to Customer; and (ii) an exclusive, perpetual, irrevocable, worldwide, royalty-free license to use the Usage Data, in an anonymized fashion, for Augury’s research and development activities, including to further develop and expand Augury’s knowledge base related to the Augury Technology, and otherwise in connection with Augury’s predictive maintenance, diagnostics and other services.  Augury acknowledges that Customer Data constitutes Customer's confidential information.
Restrictions. Customer will not, and will ensure that Authorized Users do not: (a) use Devices for any purpose other than to utilize the Services; (b) decipher, decompile, disassemble, attempt to find the underlying code of, or reverse-engineer, any of the software, algorithms, hardware or technology included in or used to provide the Augury Technology; (c) copy, modify, frame, or create derivative works of the Augury Technology; (d) remove or alter any trademark, product names, logos, or any other proprietary notices, legends, symbols or labels; (e) license, sublicense, sell, resell, transfer, assign, distribute or otherwise make available to any third party any part of the Augury Technology; (f) circumvent, disable or otherwise interfere with security-or access-related features of the Augury Technology; (g) publish or otherwise disclose to third parties the results of benchmark tests of the Devices, Services or other Augury Technology, without Augury’s prior written consent; or (h) access or use any part of the Augury Technology in order to build a competitive product or service.  Customer agrees that Devices may not be resold or otherwise transferred to any third party by Customer.
No Implied Rights. Each party respectively reserves all of its rights not expressly granted in this Agreement.  No licenses will be granted by Augury to Customer under this Agreement with respect to any Augury Technology or any trademarks, service marks or logos of Augury, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement.
REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
Mutual Warranties. Each party represents and warrants that it is authorized and has full legal authority to enter into this Agreement and to perform its respective obligations under this Agreement.
By Customer. Customer further represents, warrants and covenants that any data and information provided by Customer to Augury (including any data and information submitted or uploaded through the Services): (i) does not infringe the intellectual property or other proprietary rights of any third party, (ii) complies with all applicable law and regulations, and (iii) does not contain any worms, viruses, spyware, adware or other malicious or intrusive software.  
By Augury. Augury further represents, warrants and covenants that, during the Subscription Term, (a) the Devices will substantially conform in all material respects to the Documentation, and (b) the diagnostics results made available by the Services will substantially conform to the requirements of ISO 10816 or its equivalents.  In the event the Devices fail to substantially conform to the Documentation, Augury will, within a commercially reasonable time, repair the non-conformance or replace the defective Devices. The limited warranty does not apply to: (i) any Devices that have been modified, repaired or altered, except by Augury; (ii) any Devices which were improperly installed by Customer or not maintained in accordance with any instructions supplied by Augury; or (iii) any Devices that have been subjected to physical or electrical stress, misuse, abuse, negligence or accidents.  This limited warranty is non-transferable and shall extend only to Customer.
Disclaimers.  Except as expressly set forth in clause ‎6.3 above, Augury makes no, and hereby disclaims all, representations and warranties of any kind, whether express, implied or statutory, with respect to the Devices, Services, Augury Technology, or any related subject matter, including, without limitation, the implied warranties of non-infringement, merchantability or fitness for a particular purpose, or any warranties arising out of the course of dealing, to the maximum extent permitted by law.  Without limiting the generality of the foregoing, Customer expressly acknowledges that the data, information, recommendation and suggestions made available through the Services or otherwise by Augury (collectively, “Insights”) are generated by an algorithm developed by Augury (and which Augury continuously strives to improve) and Customer acknowledges and agrees that (i) Augury does not warrant that the Services or the Insights are error-free or with no vulnerabilities, (ii) any Insights must be independently verified by a trained professional and are not a substitute for professional advice, diagnosis and maintenance, and (iii) the Services are intended only to assist Customer in operating its own business and Customer is solely responsible (and Augury assumes no responsibility and will have no liability of any kind) for the decisions that Customer may make based on the Services or the Insights (or lack thereof) or any effects on Customer’s business that may result from Customer’s use of the Services.
LIMITATION OF LIABILITY
To the maximum extent permitted by applicable law, (a) except with respect to liability arising under Section ‎5.3 (Restrictions), in no event will either party or its affiliates or any of its or their respective officers, directors, employees, representatives or agents be liable to the other party or any third party for any loss of use or data, damage to machines on which Devices are installed; loss or interruption of business or production, or for indirect, incidental, special, punitive, and/or consequential damages or any kind, arising out of or in connection with this Agreement, or otherwise the Devices or Services, Augury Technology or Insights, whether or not such party has been advised of the possibility of such damages; and (b) in no event will Augury’s cumulative liability arising from or relating to this Agreement, or otherwise the Devices or Services, exceed the total amounts paid by Customer to Augury for use of the Services during the twelve (12)-month period immediately preceding the event giving rise to the liability. 
CONFIDENTIALITY
Customer acknowledges that all nonpublic technical, business or other information, documentation and materials delivered to or learned by Customer in connection with use of the Devices and Services or otherwise this Agreement (including, without limitation, any Augury Technology and any feedback, software, trade secrets and specifications relating to the Devices, Services and/or Augury Technology) constitute Augury's confidential information (“Confidential Information”). Customer hereby agrees, during and after the Subscription Term: (i) to hold and maintain in strict confidence all Confidential Information, and to use at least the same degree of care to protect the Confidential Information as it uses to protect its own confidential information of like importance (and in no event with less than reasonable care); (ii) not to use any Confidential Information except as expressly permitted under this Agreement, and (iii) not to disclose Confidential Information to any person (including third party contractors), except to those of its employees who have a need to know for the purposes of this Agreement, without express written authorization from Augury on a case-by-case basis.
PUBLICITY.  Neither party may use the name or logo of the other party in any media release, public announcement or similar disclosure unless such use was approved in writing (including via e-mail) by the other party prior thereto.  Notwithstanding the foregoing, (a) after this Agreement or an Order Form has been in effect for 60 days, Augury may use Customer's name and logo in its customer lists which may be posted on Augury’s website or other marketing materials, provided that such postings will at all times comply with any trademark usage guidelines provided by Customer to Augury and will promptly be removed following Customer's request to do so; and (b) with the prior written approval of Customer (which Customer will consider in good faith), Augury may issue a press release or other public announcement describing its relationship with Customer, including detailed descriptions of Customer's use of the Services or related practices or any financial impact the Services have had on Customer.
MISCELLANEOUS.  
This Agreement shall be governed by the laws of the State of New York exclusive of its choice of law rules. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.  The competent courts in the city of New York shall have exclusive jurisdiction to hear any disputes arising under this Agreement.  Notwithstanding the foregoing, in the event a breach or threatened breach of this Agreement that could result in irreparable harm to a party for which money damages would be an inadequate remedy, including, without limitation, breaches of Sections ‎5.3 (Restrictions) or ‎8 (Confidentiality), the non-breaching party will be entitled to seek immediate equitable and other provisional relief, in addition to any other remedies available at law or in equity and without prejudice to any such other remedies.
Augury will not be liable to Customer due to any delay in delivery of the Devices or provision of the Services or any other non-performance hereunder caused by circumstances beyond the reasonable control of Augury, including, without limitation, acts of God, regulation or other acts of civil or military authority, required approvals of government bodies, fires, strikes, floods, epidemics, quarantine restrictions, riots, or delays in transportation.
Should any contradiction arise between these Terms and Conditions and the Order Form, these Terms and Conditions will prevail.  Except as expressly set forth herein, this Agreement may not be modified or amended except in a writing executed by both parties.  This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  In the event that any provision of this Agreement is held to be unenforceable, such provision shall be replaced with an enforceable provision which most closely achieves the effect of the original provision, and the remaining terms of this Agreement shall remain in full force and effect.  No waiver or amendment of any breach or provision contained in this Agreement will be binding on Augury unless embodied in a writing expressly stating that it is such a waiver or amendment and signed by an officer of Augury.  No waiver of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. 
The parties hereto are and intend to remain independent contractors.  Nothing in this Agreement creates any agency, employment, joint venture, or partnership relationship between Customer and Augury or authorizes Customer to act on behalf of Augury. 
Neither party may assign, directly or indirectly, this Agreement, in whole or in part, to any third party, without the prior written consent of the other party; provided, however, that Augury will have the right, without the prior written consent of Customer, to assign this Agreement (or its rights or obligations under this Agreement) to (i) an affiliate of Augury or (ii) an unrelated entity in connection with a merger, acquisition or sale of all or substantially all of its assets with or to such other entity.  Any assignment in violation of the foregoing shall be void.  Further, Augury may terminate this Agreement by written notice to Customer upon a change of control of either party.  As used herein, “change of control” means, with respect to a party, the sale of all or substantially all the assets of such party; the sale or issue of shares or securities representing a majority of the voting power of such party; or acquisition of the party by means of a merger or other form of corporate reorganization.
All notices given pursuant to this Agreement shall be in writing and may be hand delivered, or shall be deemed received within five (5) business days after mailing if sent by registered or certified mail, return receipt requested. Notices shall be sent to the address set forth in the Order Form or such other address as either party may specify in writing to the other party from time to time.  Any notice Augury may be required to provide to Customer under this Agreement may also be provided to the email address provided by Customer upon registration for the Services.  

Version Update:  January 2021