iWAREHOUSE Terms and Conditions

iWAREHOUSE TELEMATICS SYSTEM TERMS

These terms are an agreement between the Raymond-authorized Solutions and Support Center listed on the Order (the “S&SC”) and the customer listed on the Order (the “Customer”) and govern Customer’s purchase, lease or rental and use of one or more units of the iWAREHOUSE® Telematics System (together with the Documentation, Equipment, Services and Software associated therewith, the “Product”).

These terms were last updated on February 3, 2021 and are effective as between S&SC and Customer as of the date Customer signs the Order (the “Effective Date”). Terms applicable to Orders executed before the Effective Date but after December 1, 2020 are available by completing the contact form at the bottom of this page.

The parties agree as follows:

1. Definitions. In this agreement the following definitions apply:

“Cloud Services” means the online, web-based services made available to Customer in connection with the Product.

“Confidential Information” means any information, whether oral or written, received by the Receiving Party from Disclosing Party that a reasonable person, given the nature and circumstances of disclosure, would know to be confidential; provided, however, Confidential Information does not include any information that is: (i) already public when the Disclosing Party discloses it to Receiving Party or becomes public (other than as a result of breach of this agreement by Receiving Party) after the Disclosing Party discloses it to the Receiving Party; (ii) lawfully obtained, after it is disclosed under this agreement, from a third-party who is not otherwise bound by a confidentiality agreement with Disclosing Party; (iii) already in the possession of the Receiving Party or any of its Representatives on a non-confidential basis prior to Disclosing Party’s disclosure; (iv) independently developed by the Receiving Party without use or reference to the Disclosing Party’s Confidential Information and without violating any obligation under this agreement; or (v) released without restriction by Disclosing Party..

“Customer Content” means all information submitted, entered or otherwise provided by or on behalf of Customer into the Cloud Services.

“Documentation” means information in written or electronic form distributed or otherwise made available with the Product.

“Embedded Software” means Software incorporated into Equipment.

“Equipment” means the hardware provided by or on behalf of S&SC to Customer for use in connection with the ordered Products. Equipment does not include the underlying industrial truck or tow tractor on which the Product operates or any hardware provided as an integrated component of such industrial truck or tow tractor, unless such integrated component is specifically ordered as a field installation under an Order.

“Intellectual Property” means any copyright, trademark, trade secret, patent, application for patent, moral right, or other intellectual or proprietary right recognized by any jurisdiction, whether now existing or hereafter arising.

“Order” means the proposal provided by S&SC and signed by both S&SC and Customer that incorporates this agreement by reference.

“Professional Services” means consultation, configuration and training services provided by S&SC or its representative in connection with the Product, as more fully described in the Order.

“Price” means the price set forth in each Order for the Product plus allowable taxes and fees.

“Raymond” means The Raymond Corporation.

“Services” means the Cloud Services, Support Services and Professional Services.

“Software” means (i) all computer programs whether in source code, object code, script or other form, necessary for use in connection with the Product, including Embedded Software; and (ii) all subsequent Updates and Upgrades.

“Support Services” means the maintenance and support offering for the Product as more fully described in exhibit 1 and the Order.

“Update” means minor changes, fixes or patches to the Software to make the existing Software or Equipment perform as intended.

“Upgrade” means each new version of Software that adds new features, functionality or enhancements over the existing Software that is not included in an Update.

2. Product and Professional Services.

(a) S&SC shall provide the Product to Customer on the pricing and other terms specified in the Order and subject to this agreement. The Order is subject to and made part of this agreement. If Customer has issued a purchase order or other document in addition to the Order to initiate the provision of the Product, the parties acknowledge that any terms appearing thereon will have no effect and only the provisions of this agreement, including the Order, will apply. Customer shall ensure that it has the appropriate information systems (e.g., internet connectivity, network infrastructure) in place to support the Product. Customer’s noncompliance with the preceding sentence will not relieve Customer of its payment obligations hereunder.

(b) Software. S&SC hereby grants to Customer a limited, non-exclusive, non-transferable license, without the right to sublicense, to use the Software solely as necessary for Customer to use the ordered Product for its own internal business purposes and at its own facilities (the “Permitted Purpose”). Customer shall not, and shall not permit others to: (1) sell, lease, rent, timeshare or distribute the Software; (2) disassemble, decompile, reverse engineer or otherwise attempt to derive the Software’s source code; (3) publish, provide or otherwise make available to any third party, any competitive, performance or benchmark tests or analysis relating to the Software; (4) remove, alter or obscure any proprietary notices thereon; or (5) use any Embedded Software separately from the Equipment on which it is integrated, or for any purpose other than using and managing the Equipment on which the Embedded Software is installed. During the applicable warranty period, Customer shall receive, without charge, all Updates that S&SC makes commercially available. Customer acknowledges that Updates may be provided without notice to Customer. S&SC may make Upgrades available, the use of which may be contingent upon Customer’s agreement to additional terms or payment of additional fees.

(c) Documentation. S&SC hereby grants to Customer a non-exclusive, non-transferable license, without the right to sub-license, to use the Documentation solely for the Permitted Purpose. Customer may make a reasonable number of copies of the Documentation for back-up or archival purposes only but shall not remove, alter or obscure any proprietary notices thereon. If the Documentation is revised or supplemented, S&SC shall promptly deliver a copy of such revised or supplemental Documentation to Customer, at no additional cost to Customer.

(d) Equipment.

(1) Unless otherwise provided in the Order, shipments of Equipment to: (A) destinations within North America will be delivered, as applicable, FOB S&SC’s or manufacturer’s facility (Uniform Commercial Code); and (B) destinations outside North America will be delivered, as applicable, Free Carrier (FCA) S&SC’s or manufacturer’s facility (Incoterms® 2010). Customer shall not obligate S&SC or any manufacturer to be an importer or exporter into or out of any country.

(2) Customer shall have the right to inspect the Equipment within five days of its receipt (the “Inspection Period”). If Customer reasonably determines that the Equipment is out of compliance with this agreement or the applicable Order, Customer shall promptly notify S&SC in writing specifying the details of the noncompliance and furnish such evidence as reasonably required by S&SC. Customer will be deemed to have accepted the Equipment unless Customer notifies S&SC in writing of any nonconforming Equipment during the Inspection Period. If Customer timely notifies S&SC of any nonconforming Equipment, S&SC shall, in its discretion: (A) correct or replace, at its expense, the Nonconforming Equipment; or (B) refund or credit the portion of the Price associated with such nonconforming Equipment, together with all reasonable shipping, handling and transportation expenses incurred by Customer in connection therewith. Customer shall ship, at S&SC’s expense and risk of loss, the nonconforming Equipment to an address provided by S&SC. If S&SC exercises its option to replace the nonconforming Equipment, S&SC shall, after receiving Customers’ shipment of nonconforming Equipment, ship to Customer, at S&SC’s expense and risk of loss, the replacement Equipment. Customer acknowledges that the remedies set forth in this section 2(d)(2) are Customer’s exclusive remedies for the delivery of nonconforming Equipment.

(3) Customer shall: (A) use the Equipment solely for the Permitted Purpose; and (B) not, and shall not permit others to, disassemble or reverse engineer the Equipment or remove any proprietary notices thereon. At all times while Equipment, to which title to is held by S&SC or Raymond Leasing Corporation, Customer shall (X) not re-sell the Equipment (any sales of Equipment by Customer are hereby void ab initio); (Y) protect the Equipment with equal or better care than Customer protects similar types of equipment owned or controlled by Customer, but with no less than a reasonable degree of care; and (Z) upon prior notice, permit S&SC, Raymond Leasing Corporation and their authorized representatives to inspect such Equipment.

(e) Cloud Services.

(1) S&SC hereby grants to Customer a non-exclusive, non-transferable right to enable any Customer-authorized user (“Authorized User”) to access and use the Cloud Services via Customer’s computers, mobile devices or tablets solely for the Permitted Purpose. Customer shall not, and shall ensure that Authorized Users do not: (A) remove, alter or obscure any copyright, trademark or other proprietary notices; (B) use or access the Cloud Services to provide service bureau, time-sharing or other services to third parties; (C) reverse engineer, decompile, disassemble or otherwise attempt to derive the Cloud Services source code; (D) modify or create derivative works based on the Cloud Services; (E) attempt to undermine the security or integrity of the Cloud Services; (F) attempt to view, access or copy any material or data other than that which Customer is authorized to access; (G) transmit, input or store any Customer Content that breaches any third party right (including Intellectual Property rights); or (H) access the Cloud Services in order to build a similar or competitive product.

(2) Customer shall make every reasonable effort to prevent unauthorized access to the Cloud Services. Customer shall promptly notify S&SC of any known or reasonably suspected unauthorized use of, or access to, the Cloud Services.

(3) Customer acknowledges that S&SC may on one or more occasions change, discontinue or deprecate Cloud Services or change, add, or remove features or functionality of the Cloud Services.

(4) Customer is solely responsible for the content of all Customer Content. Customer has and shall maintain the legal bases and right to share Customer Content with S&SC and its service providers. Customer shall secure and maintain all rights in Customer Content necessary for the provision of the Cloud Services without violating the rights of any third party or otherwise obligating S&SC or its licensors or service providers. S&SC does not assume any obligations with respect to the Customer Content other than as expressly set forth in this agreement or as required by applicable law.

(5) S&SC shall have the right to immediately suspend any portion of Customer’s access to and use of the Cloud Services, including any Authorized User, if S&SC determines that Customer’s or any Authorized User’s access to or use of the Cloud Services (A) is prohibited by law or this agreement; (B) poses a security threat to the Cloud Services, S&SC or any third party; or (C) may adversely impact the integrity of the Cloud Services or the content of any other third party. S&SC shall provide Customer with prior notice of such suspension; provided, however, if prior notice is not possible or is otherwise unreasonable, S&SC shall notify Customer as soon as reasonably possible following such suspension. Any suspension hereunder will not excuse Customer’s payment obligations.

(f) Support Services. S&SC shall provide the Support Services as provided in the Order. S&SC shall supply all personnel, materials and equipment necessary to complete the Support Services, unless otherwise stated in the Order. S&SC shall have the right to hire or engage one or more subcontractors to perform the Support Services; provided, that S&SC shall remain solely responsible for its subcontractors’ compliance with the terms of this agreement.

(g) Professional Services. Customer may order Professional Services from S&SC under a separate order at S&SC’s then-current hourly rates.

(h) Customer acknowledges that the Services may not be sufficient for Customer’s intended purpose or that Customer may achieve any particular results from use of the Services.

3. Price and Payments.

(a) For each Order, Customer shall pay the Price invoiced under section 3(c). Except as otherwise provided herein, all sales are final and non-refundable. In addition to any other remedies it may have, S&SC shall have the right to suspend Customer’s access to and use of the Cloud Services during such time as any amount owed by Customer is past due.

(b) Customer shall pay all taxes and fees imposed upon the provision of the Product. All such taxes and fees will be stated as separate items on an invoice. Customer acknowledges that the Price set forth in each Order may not include any tax, excises, duties, tariffs, fees or other governmental charges.

(c) Invoice.

(1) Subject to section 3(c)(2), S&SC and Raymond Leasing Corporation, as applicable, shall submit invoices to Customer.

(2) Consolidated Invoicing. Notwithstanding section 3(c)(1), to the extent Customer has elected and is authorized to participate in consolidated invoicing, Customer acknowledges that Raymond, on behalf of S&SC, will render a single consolidated invoice for the eligible Product ordered hereunder and other Product and services Customer purchases from Raymond, S&SC or any of their affiliates. Customer acknowledges that consolidated invoicing is extended to Customer as a courtesy and that Raymond has no liability to Customer hereunder.

(d) Customer shall have no right to withhold, offset, recoup or debit any amounts that S&SC, Raymond or Raymond Leasing Corporation owes to Customer.

4. Term and Termination.

(a) This agreement commences on the Effective Date and will expire on the expiration or termination of the Order (the “Term”). Either party may terminate this agreement and the Order without cause upon 60 days’ prior notice to the other party.

(b) Effect of Termination. Upon termination of the Order, the following fees are immediately due and payable: (1) All amounts owed by Customer under the Order as of the termination effective date; and (2) all other unpaid fees attributable to a minimum term (e.g. remote hosting fees, cellular fees, third party licensing fees).

5. Intellectual Property.

(a) S&SC and its licensors and service providers are and shall remain the owner of all Intellectual Property rights in and to the Product. The granting of access to any Cloud Service by S&SC should not be construed as granting or conferring any rights by license or otherwise in the Cloud Services. Customer shall not, during the Term or at any time thereafter, attack the Intellectual Property rights of S&SC or its licensors or service providers in and to the Product.

(b) Customer owns all right, title and interest in and to the Customer Content and all Intellectual Property rights therein. Customer hereby grants to S&SC a worldwide, non-exclusive, paid-up, transferable, perpetual and irrevocable license for S&SC and Raymond and each of their licensors to use, store, copy, modify, make available and communicate the Customer Content (1) as reasonably necessary to provide the ordered Product to Customer; (2) to improve and develop Raymond and S&SC Product and services; and (3) to aggregate Customer Content with that of others to use for any business purpose during or after the Term, provided that Customer is not identifiable as the source of any such data.

6. Representations and Warranties.

(a) S&SC represents and warrants that it has the full power, capacity and authority to enter into and perform this agreement and to make the grant of rights contained herein, and its performance hereunder does not violate or conflict with any other agreement to which S&SC is a party.

(b) Customer represents and warrants that Customer has the full power, capacity and authority to enter into and perform this agreement and to make the grant of rights contained herein, and its performance hereunder does not violate or conflict with any other agreement to which Customer is a party. Customer further represents and warrants that Customer has the sole responsibility to accept or reject any recommendations made by S&SC in providing the Services and, except as otherwise set forth in this agreement, Customer assumes all risk and liability resulting from use of the Services and information delivered thereunder.

(c) EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT OR THE ORDER, S&SC MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, OR TITLE/NONINFRINGEMENT AND ALL SUCH WARRANTIES ARE HEREBY SPECIFICALLY DISCLAIMED. ANY EMPLOYEES, REPRESENTATIVES, AGENTS, OR DISTRIBUTORS OF S&SC ARE NOT AUTHORIZED TO MODIFY OR MAKE ADDITIONS TO THIS WARRANTY THAT ARE BINDING ON S&SC. ANY SUCH STATEMENTS, WHETHER WRITTEN OR ORAL, DO NOT CONSTITUTE ADDITIONAL WARRANTIES.

7. Confidentiality.

(a) The party, its affiliates or agents that receives Confidential Information (the “Receiving Party”) of the other party, its affiliates or agents (the “Disclosing Party”) shall: (1) treat the Disclosing Party’s Confidential Information as confidential; (2) use the same degree of care as it maintains the confidentiality of its own confidential information, but in no event will the Receiving Party use less than a reasonable degree of care to maintain the confidentiality of Disclosing Party’s Confidential Information; (3) not use the Disclosing Party’s Confidential Information for any purpose other than as expressly permitted by or in connection with its obligations under this agreement; and (4) prevent disclosure of the Disclosing Party’s Confidential Information to third parties; provided, however, disclosure may be made on a confidential basis to Receiving Party’s parent, subsidiary and affiliate companies, and their officers, directors, employees and contract employees, agents, consultants, financing sources and advisors (collectively, “Representatives”) who need to know in connection with this agreement, so long as the Representatives are aware of the confidential nature and are bound to preserve the Confidential Information’s confidentiality. The Receiving Party shall be responsible for ensuring that its Representatives keep the Confidential Information confidential, do not disclose or divulge the same to any unauthorized person or entity and abide by the use restrictions contained herein. If either party or any of its Representatives loses or makes an unauthorized disclosure of the Confidential Information, it shall promptly notify the other party, provide a description of the circumstances of the loss or unauthorized disclosure and use reasonable efforts to retrieve the lost or wrongfully disclosed Confidential Information.

(b) Notwithstanding anything in this section 7 to the contrary, Customer Confidential Information does not include any feedback, suggestion or idea provided by Customer. S&SC and Raymond shall have the right to use, profit from, disclose, publish and otherwise exploit any such feedback, suggestion or idea, without compensation to Customer. Customer hereby relinquishes and waives any Intellectual Property right it may have in any such feedback, suggestion or idea.

(c) The Disclosing Party’s Confidential Information, and all permitted copies, will remain the property of the Disclosing Party, and the Disclosing Party shall have the right to demand its return, in whole or in part, at any time, upon giving written notice to the Receiving Party. Upon receipt of such notice, the Receiving Party shall return the Confidential Information and all copies in its possession to the Disclosing Party as soon as is reasonably practical, but in no more than 30 days. Confidential Information incorporated in documents will be destroyed by Receiving Party. If the Receiving Party has destroyed any copies of Disclosing Party’s Confidential Information, Receiving Party shall confirm the destruction of such copies in the letter accompanying the return of any documents or copies. Notwithstanding the foregoing sentences, (1) the Receiving Party shall not be obligated to return or destroy any Confidential Information the Receiving Party is retaining pursuant to a document retention hold established in connection with any civil or criminal investigation or litigation for the period the document retention hold is in effect, at which time the Confidential Information will be returned to the Disclosing Party or destroyed as aforesaid; and (2) to the extent Receiving Party’s computer back-up procedures create copies of the Confidential Information, the Receiving Party may retain such copies in its archival or back-up computer storage for the period the Receiving Party normally archives backed-up computer records. Any such documents or abstract so created will be retained subject to this agreement until they are destroyed.

(d) The Receiving Party may disclose the Disclosing Party’s Confidential Information that it is obligated, on the advice of legal counsel, to produce by law or under order of a court of competent jurisdiction or other similar requirement of a government agency, for the limited purpose required by the court or government agency, so long as the Receiving Party, to the extent legally permitted, provides the Disclosing Party with prompt written notice with sufficient time to permit the Disclosing Party to seek a protective order to protect its Confidential Information from disclosure.

(e) Each party recognizes that the Disclosing Party will have no adequate remedy at law if the Receiving Party does not comply with its obligations under this section 7. Therefore, the Disclosing Party shall have the right, in addition to any other rights it may have, to temporary, preliminary and permanent injunctive relief to restrain any breach, threatened breach, or otherwise to specifically enforce any obligations of Receiving Party under this agreement.

(f) The requirements imposed by this section 7 will continue for three years following the termination or expiration of this agreement or until the Confidential Information is no longer confidential as contemplated herein.

8. Indemnification.

(a) S&SC Indemnification.

(1) S&SC shall defend, indemnify, and hold harmless Customer against all losses, damages, penalties, judgments, liabilities, settlements and expenses, including reasonable attorney fees and other expenses of litigation, settlement or defense (collectively, “Indemnifiable Losses”) arising out of or resulting from any claim, suit, proceeding or cause of action brought by a third party (each, a “Claim”) in connection with allegation that Customer’s use of the Products infringes or misappropriates the Intellectual Property rights of any third party, provided that Customer gives S&SC prompt written notice of any Claim; allows S&SC to control the defense, settlement and all related negotiations; and fully cooperates with S&SC in the defense, settlement and all related negotiations. Notwithstanding the foregoing, S&SC shall have no defense or indemnity obligation for Claims arising from (A) Customer’s use of the Products not in compliance with this agreement or the Documentation; (B) modification to any portion of the Products not approved in writing or performed by S&SC or its agents (C) specifications provided by Customer; (D) any use of the Products in combination with other products, equipment, software or data not supplied by S≻ or (E) Customer’s failure to implement an update or enhancement provided by S&SC.

(2) If the Product becomes the subject of Claim or is likely to become the subject of such a claim, then, in addition to defending the Claim and paying any damages as required in section 8(a)(1), S&SC may, at its option and in its sole discretion, either (A) replace or modify the Product, providing not less than the functionalities specified in this agreement and the Order, to make them non-infringing or misappropriating; or (B) procure for Customer the right to continue using the Product. If neither of the foregoing is feasible or otherwise reasonable, S&SC shall have the right to immediately terminate the Order and refund to Customer the prorated portion of any amounts paid thereunder.

(3) The remedies set forth in this section 8 will be Customer’s sole and exclusive remedy, and S&SC’s sole and exclusive liability, for any Claim.

(b) Customer Indemnification.

(1) Customer shall defend, indemnify and hold harmless S&SC, Raymond, Raymond Leasing Corporation and the officers, directors, employees and agents of each against all Indemnifiable Losses arising out of or resulting from any Claim in connection with (A) Customer’s or any of its contractor’s, subcontractor’s or agent’s use of the Products not in accordance with the Documentation, the Permitted Purpose, this agreement or in any unlawful manner; (B) the negligence or willful misconduct of Customer or its employees, agents, servants, subcontractors or vendors; (C) any breach or alleged breach of this agreement by Customer; or (D) an allegation that any Customer Content infringes or misappropriates any Intellectual Property, privacy or other legal right of any third party.

(2) S&SC shall notify Customer with reasonable promptness upon learning of any claim for which S&SC seeks defense, settlement or indemnification from Customer, but S&SC’s failure to do so will have no effect except to the extent Customer is prejudiced thereby. S&SC shall allow Customer to control the defense and settlement of the indemnified claim and shall reasonably cooperate with the defense, but Customer shall use counsel reasonably experienced in the subject matter at issue and shall not settle a claim without the written consent of S&SC.

9. LIMITATION OF LIABILITY. IN NO EVENT WILL THE CUMULATIVE LIABILITY OF S&SC, ITS SUPPLIERS, LICENSORS OR AFFILIATES EXCEED THE TOTAL PAYMENTS RECEIVED BY S&SC FROM CUSTOMER UNDER THE ORDER, WHETHER ARISING UNDER WARRANTY/GUARANTEE, CONTRACT, NEGLIGENCE, STRICT LIABILITY, INDEMNIFICATION, DEFENSE OR ANY OTHER CAUSE OR COMBINATION OF CAUSES. S&SC AND ITS SUPPLIERS, LICENSORS AND AFFILIATES WILL NOT BE LIABLE TO CUSTOMER FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES OR OTHER ECONOMIC LOSSES, THE LOSS OF DATA OR AN INABILITY TO USE THE PRODUCT, WHETHER ARISING UNDER WARRANTY/GUARANTEE, CONTRACT, NEGLIGENCE (INCLUDING NEGLIGENT MISREPRESENTATION), STRICT LIABILITY, INDEMNIFICATION, OR ANY OTHER CAUSE OR COMBINATION OF CAUSES, INCLUDING ANY THEORIES OF CONCURRENT LIABILITY ARISING FROM A DUTY OF CARE BY OPERATION OF LAW OR OTHERWISE. THESE EXCLUSIONS APPLY EVEN IF S&SC HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES, AND EVEN IF ANY REMEDY FAILS OF ITS INITIAL PURPOSE.

10. Force Majeure. S&SC shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this agreement, for any failure or delay in fulfilling or performing any term of this agreement when and to the extent such failure or delay is caused by or results from any event or circumstance, whether or not foreseeable, beyond the reasonable control of S&SC.

11. Remote Hosted Services. As further specified in the Order, the Product may include third party services for data storage and housing of servers. As of the date of this agreement, enVista Technology Solutions (“enVista”) provides remote hosting services under an agreement with Raymond for the benefit of S&SC and other entities authorized to sell and service RAYMOND® products. Under the terms of that agreement, enVista has agreed to provide the remote hosting services in compliance with the standards set forth in exhibit 2. Customer acknowledges that, upon reasonable notice, the remote hosting service provider may change for any reason and at any time.

12. Raymond GATEWAY™. As further specified in the Order, the Product may include Customer access to the Raymond GATEWAY. The Raymond GATEWAY complies with the security standards set forth in exhibit 3.

13. Third Party Beneficiary. Raymond and, to the extent Customer leases any Product from Raymond Leasing Corporation, Raymond Leasing Corporation are intended third party beneficiaries of this agreement, and shall be entitled to directly enforce and rely upon, each provision of this agreement that confers a right or remedy in its favor.

14. Assignability. Customer shall not assign its interest in, or delegate any of its duties under, this agreement. Any unauthorized assignment or delegation will be null, void and of no force or effect and will constitute a material breach of this agreement.

15. Governing Law. The laws of the State of New York govern the validity, interpretation and performance of this agreement as well as all adversarial proceedings arising out of this agreement, without giving effect to any laws, rules or provisions that would cause application of the laws of any jurisdiction other than the State of New York. If either party brings against the other party any proceeding arising out of this agreement, that party shall bring that proceeding only in a state or federal court located in Chenango County or Onondaga County, New York. The application of the United Nations Conventions on Contracts for the International Sale of Goods is excluded.

16. Notice. All notices, consents, communications or transmittals under this agreement will be in writing and will be deemed received on the day of delivery if personally hand delivered or sent by facsimile or electronic transmission (with written confirmation of the completed transmittal); or within two business days if mailed as certified or registered mail with return receipt, postage prepaid addressed to the party to whom such notice is given at the address of such party stated above.

17. Entire Agreement; Waivers. This agreement contains the entire agreement between the parties and supersedes and cancels all prior agreements, whether oral or written, regarding the relating to the subject matter herein. There are no understandings, inducements, commitments, conditions, representations or warranties, whether direct, indirect, collateral, express or implied, oral or written, from either party to the other, other than as contained in this agreement. No waiver or satisfaction of a condition or nonperformance of an obligation under this agreement will be effective unless it is in writing and signed by the party granting the waiver.

18. Independent Contractors. The parties are independent contractors only and are not partners, master/servant, principal/agent or involved herein as parties to any other similar legal relationship with respect to the transactions contemplated under this agreement or otherwise, and no fiduciary, trust, or advisor relationship, nor any other relationship imposing vicarious liability shall exist between the parties under this agreement or otherwise at law.

19. Severability. If a dispute between the parties arises out of this agreement or the subject matter of this agreement, the parties desire that the court interpret this agreement as follows: (a) with respect to any provision that the court holds to be unenforceable, by modifying that provision to the minimum extent necessary to make it enforceable or, if that modification is not permitted by law, by disregarding that provision; and (b) if an unenforceable provision is modified or disregarded in accordance with this section, by holding that the rest of the agreement will remain in effect as written; and (c) if modifying or disregarding the unenforceable provision would result in a failure of an essential purpose of this agreement, by holding the entire agreement unenforceable.

20. Publicity. S&SC, Raymond Leasing Corporation and Raymond may identify Customer as a customer for any marketing or advertising purposes.

21. Right to Audit. Customer shall, whenever requested, promptly advise S&SC and its representatives of the exact location of Equipment. Upon no less than 30 days written notice, S&SC and its representatives may audit Customer’s use of the Product to verify Customer’s compliance with this agreement. Customer shall cooperate with S&SC’s audit and provide reasonable assistance and access to information and its facilities. Audits will be conducted during normal business hours and in such a manner as to not unreasonably interfere with or disrupt Customer’s normal business operations. Notwithstanding the foregoing three sentences, S&SC and its service provides shall have the right, at any time, on one or more occasions and with no prior notice, to audit any use of the Cloud Services to verify Customer’s compliance with this agreement. If any audit reveals any noncompliance with the terms of this agreement, Customer shall promptly correct any noncompliance.

22. Country Specific Terms.

(a) Canada. The terms of this section 22(a) only apply for the purchase and use of the Product within Canada.

(1) “Data Subject” means any individual whose Personal Information is included in any Customer Content.

(2) “Personal Information” means information about an identifiable individual, including where there is a serious possibility that an individual could be identified through the use of that information, directly or indirectly, alone or in combination with other information.

(3) Customer acknowledges that S&SC, its processors and subprocessors transfer and store Customer Content, including any Personal Information contained therein, in the United States. Customer agrees that S&SC may transfer and/or store Customer Content outside Canada.

(4) Customer represents and warrants that Customer has provided all necessary notices to, and obtained all necessary consents from Data Subjects in order for S&SC and Raymond to collect, use and disclose such Data Subjects’ Personal Information in connection with the Services, in a form that complies with all applicable laws (including legislation and the common law), as well as any findings, rulings, interpretation bulletins, guidance documents or fact sheets issued by applicable regulatory authorities. Without limiting the foregoing, Customer shall ensure that Data Subjects are notified that their Personal Information will be transferred and stored outside Canada and may be accessed by foreign courts, law enforcement and national security authorities. Customer shall retain appropriate records of the notices and consents described in this Section 6(d), and shall promptly provide evidence of such notices and consents upon S&SC’s request.

(5) Customer shall take all reasonable steps to ensure that any Personal Information provided to S&SC by or on behalf of Customer is: (A) limited to only the Personal Information required by S&SC in connection with the Services; and (B) accurate and up-to-date to the extent required for operation of the Services. Subject to any legal restrictions, Customer shall reasonably cooperate with S&SC to respond to any demand, claim, action, complaint, investigation or audit by a third party relating to the collection, use, storage, protection, disclosure, destruction or other processing of Personal Information in connection with the Services (“Legal Action”), including but not limited to any such Legal Action by any Data Subjects or regulatory authority. Customer will indemnify and hold harmless S&SC and its officers, directors, employees, agents, successors and assigns from and against any and all losses, damages, liabilities, penalties, costs or expenses (including legal fees and disbursements) incurred by S&SC as a result of the Customer’s failure to comply with any laws or regulatory guidance applicable to Personal Information in connection with the Services, or Customer’s failure to comply with its obligations relating to Personal Information under this agreement.

(6) Governing Law. Section 15 is deleted in its entirety and replaced with the following: “The laws of the Province of Ontario govern the validity, interpretation and performance of this agreement as well as all adversarial proceedings arising out of this agreement, without giving effect to any laws, rules or provisions that would cause application of the laws of any jurisdiction other than the Province of Ontario. If either party brings against the other party any proceeding arising out of this agreement, that party shall bring that proceeding only in the Province of Ontario, and each party hereby submits to the exclusive jurisdiction of the courts of the Province of Ontario for purposes of any such proceeding. The application of the United Nations Conventions on Contracts for the International Sale of Goods, the Sale of Goods Act (Ontario) (or any equivalent applicable legislation), or any amendments thereto, are expressly excluded by the parties.”

(7) English Language. The parties confirm that it is their express wish that this agreement, as well as any other documents relating to this agreement, including notices, schedules and authorizations, have been and shall be drawn up in the English language only. Les parties aux présentes confirment leur volonté expresse que cette convention, de même que tous les documents s’y rattachant, y compris tous avis, annexes et autorisations, soient rédigés en langue anglaise seulement.

EXHIBIT 1

Maintenance and Support Services


1. Standard Maintenance Services.

(a) Help Desk. A help desk for Product support issues (the “Help Desk”) will be available to Customer. By contacting 800.365.7865, Customer will be provided with a telephone number for the applicable supporting Solutions & Support Center. Customer will appoint one Product administrator and one backup administrator to serve as the primary point of contact regarding maintenance services.

(b) Customer Responsibilities.

(1) Customer acknowledges that S&SC is not liable for any software or any other items or services provided to Customer by any persons other than S&SC or Raymond. Customer shall promptly notify S&SC of any anticipated delays or deficiencies in Customer’s responsibilities and shall provide prompt assistance in resolving any such delays or deficiencies to S&SC’s reasonable satisfaction. S&SC reserves the right to stop work until such delays or deficiencies are remedied to S&SC’s reasonable satisfaction.

(2) Customer shall (A) stay current with updates, fixes and releases to the extent practical; (B) perform routine maintenance of third party software; (C) install and test Software changes within a reasonable timeframe agreed upon between the Customer and S≻ (D) train key personnel on the Product; (E) describe a problem completely and accurately; (F) supply copies of screens or program errors, as requested by the Help Desk; (G) assist in replicating the problem, as requested by the Help Desk; (H) inform the Help Desk of any non-S&SC modifications and third party installations; (I) provide notice of business acceptance on fixes to problems reported; and (J) provide (at Customer’s expense) an S&SC-approved modem-VPN for remote access, wireless network and cellular signal for communication

2. Issue Resolution.

(a) S&SC addresses incidents based on the severity of the incident. S&SC shall use commercially reasonable efforts to respond to Customer within the timeframes specified herein, acknowledging receipt of the incident notification and confirming that S&SC has developed an action plan to accomplish incident resolution as defined below. S&SC shall consider Customer input when assigning a severity level to individual incidents.

(b) S&SC incident severity levels are defined as follows:

(1) Severity 1 - Error renders the Product inoperable. The Product cannot be used and no usable work-around exists. Work cannot reasonably continue, the resulting situation is critical to the operation of the business and the situation is an emergency. For Severity 1 errors, S&SC telephonic response time shall be 60 minutes from the receipt of Customer’s initial call during Help Desk hours. S&SC shall commence corrective action immediately but actual repair time will depend on the scope of effort required to correct, test and release the fix.

(2) Severity 2 - A Product function cannot be used or significantly impacts Customer operations, but a usable work-around exists. Resulting situation has some material and adverse impact on operation of the business and the work-around allows business to continue with restrictions. For Severity 2 errors, S&SC telephonic response time shall be four hours from the receipt of Customer’s initial call during Help Desk hours. S&SC shall take corrective action and a fix will be delivered in a scheduled timeline depending on the scope of effort required to correct, test and release the fix.

(3) Severity 3 - The Product causes Customer minimal impact to business operations, yet is desirable to resolve the failure because of restrictions to operations or usability issues to Customer personnel. For Severity 3 errors, S&SC telephonic response time shall be one business day from the receipt of Customer’s initial call during Help Desk hours. S&SC may take corrective action as necessary and, if applicable, a fix will be scheduled on a priority basis for a further release of the Software at S&SC’s sole discretion.

(c) Problem resolution will depend on Customer’s maintaining its responsibilities set forth herein, including timely responses to S&SC’s reasonable requests for information, excepting any delays caused by Customer, its agents, affiliates or contractors. Whenever a call is placed by Customer to S&SC for support, Customer shall provide the following information:

(1) Customer contact name, identification number, e-mail address, and telephone and fax numbers (including area code);

(2) Detailed information about the nature and location of the incident;

(3) Any error messages associated with the incident and the events leading up to incident; and

(4) Detailed description of the incident, including tentative severity.

(d) Any additional services that Customer requests and S&SC agrees to perform will be billed on a time and materials basis subject to S&SC’s then- current applicable rates, with a one hour minimum charge for services provided from S&SC’s offices and an eight hour minimum charge for services performed at Customer’s site. Associated actual and reasonable expenses include travel, lodging and project expenses incurred in the performance of the additional services.

EXHIBIT 2
Remote Hosting Services

1. Network Availability Guarantee. enVista states that the enVista network will have a monthly uptime of 99.9%. Network unavailability consists of the number of minutes that the enVista network or a enVista-ordered telephone company circuit was not available to the Customer, but will not include unavailability resulting from (1) enVista network maintenance; (2) Customer-ordered telephone company circuits; (3) Customer applications, equipment, or facilities; or (4) any acts or omissions of the Customer, its representatives, contractors or subcontractors or any use or user of the service authorized thereby.

2. Latency Guarantee. enVista’s states that its latency guarantee is average round-trip transmissions of 75 milliseconds or less between enVista designated inter-regional transit backbone routers in the contiguous United States. Latency will be measured by averaging sample measurements taken during a calendar month between backbone routers.

3. Storage Area Network Latency Guarantee. enVista states that its shared storage area network (SAN) latency guarantee is average read/write of 25 milliseconds or less for Customer volumes located on the shared SAN environment. Latency will be measured by averaging sample measurements taken during a calendar month and reported in Dell’s SAN HQ application.

4. Recovery. enVista states that it shall work to restore critical services supporting remote hosting within 72 hours following a declaration of a disaster using equipment at the disaster recovery site and leveraging cloud-based recovery services where appropriate. Standard procedures and technology in place at the datacenters result in a maximum recovery point objective (RPO) of 24 hours since the last complete replication cycle. If some or limited functionality of data center storage devices will allow for the recovery point to meet a shorter loss interval, then that should be taken in to consideration during the failover activities for the alternate datacenter.

Except as otherwise provided in the Order, Customer acknowledges that S&SC shall not be liable if enVista does not meet one or more of the statements in this exhibit 2.


EXHIBIT 3
Raymond GATEWAY


1. Service-Level Security.

(a) At the service level, Raymond uses a defense-in-depth strategy that protects data through multiple layers of security (physical, logical and data). A defense-in-depth strategy ensures that security controls are present at various layers of the service and that, should any one area fail, there are compensating controls. The strategy also includes tactics to detect, prevent, and mitigate security breaches. This involves regular improvements to service-level security features, including, but not limited to:

(1) Port scanning and remediation
(2) Perimeter vulnerability scanning
(3) Operating system security patching
(4) Network-level distributed denial-of-service (DDoS) detection and prevention

(b) Preventing breaches involves deleting unnecessary accounts when an employee leaves, changes groups, or does not use the account prior to its expiration. Wherever reasonably possible, human intervention is replaced by an automated, tool-based process.

(c) Raymond continues to invest in systems automation that helps identify abnormal and suspicious behavior and respond quickly to mitigate security risk. Raymond is also evolving an effective system of patch deployment that generates and deploys solutions to problems identified by the monitoring systems. Raymond conducts penetration tests to enable regular improvement of incident response procedures. These internal tests help Raymond security experts create a methodical, repeatable, and optimized response process and automation.

2. Physical Layer – Facility. Raymond’s datacenter has redundant power lines with redundant UPSs, generators, environmental systems, redundant, diverse network connections, online and offsite daily backups of data and a fully configured disaster recovery site with 48 hour RPO and 48 hour recovery time objective (RTO) timeframes. Datacenter access is restricted 24 hours a day by job function—with access given to essential personnel. Physical access control uses multiple authentication and security processes, including badges, on-premises security officers, and continuous video surveillance. The datacenters are monitored using motion sensors, video surveillance, and security breach alarms. In case of a natural disaster, security also includes automated fire prevention and extinguishing systems. Raymond’s obsolete storage media disposal process for hard drives and tape media leaving Raymond facilities is accomplished by physically drilling the media onsite. This goes beyond the "purge" requirement for these types of media defined by the NIST SP 800-88 document. For hard drives that are going to be repurposed, Raymond purges that media using over three passes of random overwrites, which conforms to the DoD 5220.22-M wipe standard.

3. Physical Layer – Network. Perimeter protection is implemented through the use of controlled devices at the network edge and on points throughout the network. The overarching principle of Raymond’s network security is to allow only connections and communications that are necessary to allow systems to operate, blocking other ports, protocols and connections. Access control lists (ACLs) implemented in the form of tiered ACLs on routers, firewall rules and host based firewall rules are implemented in the network with restrictions on network communication, protocols, and port numbers. Raymond uses edge router security for monitoring at the network layer. Networks within Raymond’s datacenter are further segmented to provide physical separation of critical back-end servers and storage devices from the public-facing interfaces. Raymond retains system logs for auditing and review.

4. Logical Layer. The logical layer of security involves many controls and processes implemented to secure the host machines, applications running on those hosts and from administrators that may perform any work on those host machines and applications.

5. Anti-malware, Patching, and Configuration Management. The use of anti-malware software is a principal mechanism for protection of Customer assets from malicious software. The software detects and prevents the introduction of computer viruses and worms into the systems. Anti-malware software provides both preventive and detective control over malicious software. Changes, such as updates, hotfixes, and patches made to the production environment, follow the same standard change management process. Patches are implemented within the time frame specified by the issuing company. Changes are both reviewed and evaluated by Raymond teams for applicability, risk, and resource assignment prior to being implemented.

6. Protection from Security Threats.

(a) Threat management strategy is a composite of identifying a potential threats intent, capability, and probability of successful exploitation of a vulnerability. The controls used to safe guard against such exploitations are founded upon industry-accepted security standards. The overall cyber threat landscape has evolved from traditional opportunistic threats to also include persistent and determined adversaries. Raymond provides Security Awareness training to all Raymond employees to address the evolving technical and non-technical security threats. Training provides current and relevant content for key threats such as phishing, use of privileged access and social engineering. This training is conducted annually and is mandatory for all Raymond employees.

(b) Raymond regularly improves its built-in security features. These include port scanning and remediation, perimeter vulnerability scanning, operating system patches, DDoS detection and prevention and live site penetration testing.

(c) Raymond’s system and security alerts are harvested and correlated via an internal analysis system. The signals analyze alerts that are internal to the system as well as external signals.

(d) Raymond maintains a diligent incident response process, standard operating procedures in case of an incident, ability to deny or stop access to sensitive data and identification tools to promptly identify involved parties helps ensure that the mitigation is successful.

7. Advanced Threat Protection. Raymond employs an email filtering service that provides additional protection against specific types of advanced threats and a robust and layered anti-virus protection powered with three different engines against known malware and viruses.

8. Verification. Raymond has operationalized security into a process that can quickly adapt to security trends and industry-specific needs. Raymond engages in regular risk management reviews, and it develops and maintains a security control framework that meets the latest standards. Internal reviews are performed on a regular basis. Businesses today need productivity services that help users get more done while maintaining security in the face of ever-evolving threats. Raymond’s platform incorporates security at every level, from application development to physical datacenters to end-user access.