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Luxer Room Scope

 

RECITALS:

Owner is the owner or representative of owner for the property located at  

Vendor is the creator and owner of the “Luxer One” system and network of automated parcel solutions installed in various residential projects.  Approved third party delivery services (i.e., FedEx and UPS) (“Authorized Deliverers”) are authorized to access the Luxer Room to deliver packages.

The “Luxer One” system comprises hardware (the “Equipment”) and the software that supports access to and use of the Equipment (“Vendor’s Platform”).  Authorized Deliverers shall have the right to access the Equipment utilizing Vendor’s Platform for the purposes of delivering or retrieving items to/from tenants at the Project (a “Tenant” or “Tenants”) and notifying Tenants of such delivery or retrieval.  A Tenant shall have the right to access the Equipment utilizing Vendor’s Platform for the purposes of depositing or retrieving packages in the Equipment.  

Vendor and Owner have agreed that Vendor may provide, and that Owner and Tenants may use, the Equipment and Vendor’s Platform at the Project pursuant to the terms and conditions of this Agreement.

 

AGREEMENT:

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties hereto agree as follows:

  1. BASIC AGREEMENTS
  1. Services.  In compliance with all of the terms and conditions of this Agreement, Vendor shall provide the following services (the “Services”) to the Project:
  1. Vendor shall make available Vendor’s Platform at the Project solely for use with the Equipment.
  2. Vendor shall install the Equipment as set forth on Exhibit A attached hereto in the location(s) specified by Owner in the Project for use solely with Vendor’s Platform.
  3. Vendor shall operate and maintain Vendor’s Platform (which shall include updating Vendor’s Platform as necessary) such that: (i) Authorized Deliverers may access the Equipment utilizing Vendor’s Platform for the purposes of delivering or retrieving packages and notifying Tenants of such delivery or retrieval; (ii) a Tenant may access the Equipment utilizing Vendor’s Platform for the purposes of retrieving packages delivered to the Tenant upon receipt of notice generated by Vendor’s Platform that an Authorized Deliverer has deposited a package for the Tenant in the Equipment or depositing packages for Authorized Deliverers to retrieve.
  4. Vendor shall make reasonable efforts to respond to service requests within one (1) business day after being notified of a service failure by Owner (which notice may be by telephone or e-mail).
  5. All work at the Project in connection with the Equipment and Vendor’s Platform shall be performed in a good and workmanlike manner, in accordance with all applicable laws, rules and regulations, with minimal disruption to the Tenants and the operation of the Project.

 

  1. Owner Obligations.  
  1. Owner will: (i) make commercially reasonable efforts to protect the Equipment from damage other than normal wear and tear; (ii) allow Authorized Deliverers to access to the Equipment for the purpose of making deliveries to Tenants of the Project; (iii) if applicable, notify each Tenant to register at LuxerOne.com in order to activate and use the Equipment; (iv) promptly notify Vendor in the event of any damage or malfunction to the Equipment; (v) not attempt to repair or have a third party attempt to repair the Equipment other than as set forth in Section 1.2(c) herein; (vi) provide 120v power and an Internet connection to the Equipment; and (vii) provide Vendor and Authorized Deliverers with access to the Project as necessary to carry out their respective obligations under this Agreement.
  2. Owner shall not be responsible for any fines assessed against a Tenant for the Tenant’s failure to retrieve a package from the Equipment in a timely manner.  
  3. For so long as Owner continues to pay the Service Fee set forth in Exhibit A attached hereto, in the event of damage to the Equipment and/or Vendor’s Platform at the Project, Vendor shall be responsible for providing replacement Equipment and/or patching Vendor’s Platform, unless due to the negligence or willful misconduct of Owner or of Owner’s agents or employees or any acts of vandalism or damage resulting from adverse climate conditions. Notwithstanding the foregoing, Owner shall promptly notify Vendor of any damage to the Equipment and/or Vendor’s Platform. Vendor will send replacement parts to Owner as needed, and Owner and/or its agents shall install such replacement parts in compliance with Vendor’s remote supervision.  Should a technician need to be dispatched, Vendor may charge Owner up to $100 per hour.  
  4. If the installation date needs to be rescheduled within 2 weeks of the install date by request of the Owner, or due to site readiness issues identified by Vendor, there may be up to a $500 change fee.

 

  1. Representations and Warranties.  Each Party hereby represents and warrants to the other Party that: (a) it has the full right, power and authority to enter into this Agreement; (b) this Agreement is a valid and binding obligation of such Party; (c) each individual executing this Agreement is duly authorized to execute and deliver this Agreement on behalf of the applicable Party to this Agreement; (d) it has obtained and shall maintain throughout the term of this Agreement all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules and regulations; and (e) it shall comply with all applicable laws, rules and regulations in connection with implementing this Agreement, including applicable privacy and data protection laws, applicable to such Party’s obligations under this Agreement.

 

  1. System Components Covered by Warranty.

All system components provided by Vendor are covered by the warranty, excluding damage caused by vandalism or adverse climate conditions.  A list of covered components includes:

  • Touchscreen
  • Touchscreen housing
  • Temperature management device (outdoor only)
  • Networking equipment provided by Luxer One
  • Electronic control boards
  • Wiring
  • Power Supply
  • Surveillance Camera

Excluded components include anything provided by the Owner, including:

  • Door strike
  • Shelving
  • Video Surveillance
  • Equipment provided by Owner

 

  1. COMPENSATION.  Owner shall pay to Vendor the fees for the Services as set forth on Exhibit A hereto (the “Fees”). Owner shall be solely responsible for the payment of, and shall pay when due and indemnify Vendor against all applicable federal and state taxes on the Fees to Luxer under this Agreement (except for taxes assessed on Vendor’s net income).

 

  1. INSURANCE.
  1. Insurance Requirements.   
  1. Vendor, Vendor’s agents, Vendors and affiliates (collectively, “Vendor Parties”), at their sole cost and expense, shall furnish and maintain the insurance coverages required below in forms and with companies reasonably acceptable to the Owner.  All such insurance will be primary and noncontributory with respect to insurance carried by Owner or any additional insureds and their respective affiliates.
  1. Insurance Limits.  Vendor Parties, at their expense, shall furnish and maintain the following insurance coverages:        
  1. Commercial General Liability Insurance: Vendor shall secure and maintain, at its own expense, a commercial general liability policy with a minimum coverage of $1,000,000.00 policy aggregate. Policy shall provide an Additional Insured endorsement in favor of Owner in an amount equal to that provided to Vendor under the policy. Policy shall further provide a Waiver of Subrogation endorsement in favor of Owner.
  2. Automobile Liability Insurance: If applicable, Vendor shall carry automobile liability of a minimum of $1,000,000.00, combined single limit. Auto liability must cover all owned non‐owned and hired automobiles used in connection with the Services.
  3. Workers’ Compensation / Employer’s Liability Insurance. If applicable, Vendor shall carry worker’s compensation insurance with at least the statutory minimum.
  4. Requirement to provide Certificates. Upon Owner’s request before commencing the Services, Vendor and its subcontractors shall furnish certificates of insurance satisfactory to Owner from each insurance carrier indicating that the above required insurance is in force and the amount of the carrier’s liability there under.

 

  1. INDEMNIFICATION.  Each Party agrees to indemnify and hold the other Party and its affiliates harmless from and against any losses, costs, liabilities and expenses, including attorneys’ fees, in connection with third party claims arising out of the breach of the representations, warranties and covenants made by such indemnifying Party herein, or out of such indemnifying Party’s negligence or willful misconduct. Vendor further agrees to indemnify Owner from and against any third party claims that Vendor’s Platform, when used by Owner solely as authorized in accordance with this Agreement, infringes on the intellectual property rights of the third party.

 

  1. DISCLAIMERS; WARRANTIES. VENDOR WARRANTS THAT THE EQUIPMENT WILL BE NEW AND BOTH THE EQUIPMENT AND VENDOR’S PLATFORM WILL BE FREE OF MATERIAL MANUFACTURER DEFECTS FOR A PERIOD OF ONE YEAR FROM THE EFFECTIVE DATE, PROVIDED ALL PAYMENTS PROPERLY DUE UNDER THIS AGREEMENT HAVE BEEN PAID BY OWNER WHEN DUE. VENDOR FURTHER WARRANTS TO OWNER THAT THE EQUIPMENT AND THE LUXER PLATFORM SHALL OPERATE SUBSTANTIALLY IN ACCORDANCE WITH THE SPECIFICATIONS THEREFORE PROVIDED BY LUXER IN EXHIBIT A ATTACHED HERETO. UNLESS EXPRESSLY SET FORTH IN THIS AGREEMENT, VENDOR MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. VENDOR DOES NOT WARRANT THE RESULTS OF USE OF VENDOR’S PLATFORM OR EQUIPMENT, AND OWNER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO.   OWNER SHOULD NOTE THAT IN USING VENDOR’S PLATFORM AND EQUIPMENT, SENSITIVE INFORMATION MAY TRAVEL THROUGH THIRD PARTY INFRASTRUCTURES WHICH ARE NOT UNDER VENDOR’S CONTROL (SUCH AS THIRD PARTY SERVERS). VENDOR MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH THIRD PARTY INFRASTRUCTURES.  

 

  1. LIMITATION OF LIABILITY AND DAMAGES.  EXCEPT FOR THE INDEMNITY OBLIGATIONS SET FORTH HEREIN, UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SYSTEM FAILURE OR NETWORK OUTAGE, WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF DATA, LOSS OF BUSINESS, PROFITS OR OTHER LOSS, THAT RESULT FROM THIS AGREEMENT, EVEN IF SUCH PARTY OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE INDEMNITY OBLIGATIONS SET FORTH HEREIN, IN NO EVENT WILL EITHER PARTY’S OR ITS AFFILIATES’ TOTAL LIABILITY TO THE OTHER PARTY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED TWO (2) TIMES THE FEES DUE BY OWNER TO VENDOR HEREUNDER; PROVIDED THAT SUCH LIABILITY LIMITATION SHALL NOT LIMIT OWNER’S LIABILITY REGARDING ANY EQUIPMENT OWNED BY VENDOR, WHICH LIABILITY SHALL BE LIMITED TO THE COST OF SUCH EQUIPMENT.

 

  1. TERMINATION.  
  1. Termination for No Cause.  The term of this Agreement will be specified in Exhibit A from the date hereof.  At the end of such term (and each renewal term thereafter, if any), this Agreement will automatically renew for an additional one (1) year term, with up to a 5% annual increase in fees, unless either Party provides the other Party with written notice of nonrenewal at least thirty (30) days prior to the end of the then-current term.
  2. No Early Termination.  Pricing is based on the agreed upon term.  Should Owner desire to terminate this contract prior to the end of the term specified in Exhibit A, Owner will be responsible for payment through the end of the term.
  3. Termination for Bankruptcy. This Agreement shall automatically terminate upon  (A) the institution by or against either Party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of such Party’s debts, (B) either Party making of an assignment for the benefit of creditors, or (C) either Party’s dissolution or ceasing to do business (collectively, a “Bankruptcy Termination”).  In the event of a Bankruptcy Termination by Vendor, Vendor will grant to Owner, at no charge, a non-exclusive, irrevocable, non-transferable, non-sublicensable license, provided Owner that such license shall not include the rights to any derivative works, to use the source code of Vendor’s Platform in connection with Owner’s continuing operation and use of Vendor’s Platform. In connection with the granting of such license, Vendor will transfer a copy of the source code of Vendor’s Platform in its possession at such time to servers designated by Owner, or will otherwise transmit such source code copy in the manner reasonably requested by Owner.  
  4. Rights in Bankruptcy.  All rights and licenses granted under or pursuant to this Agreement by Vendor are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the United States Bankruptcy Code, licenses of rights to “intellectual property” as defined under Section 101 of the Bankruptcy Code.  The Parties agree that Owner, as client of such license rights under this Agreement, shall retain and may fully exercise all of its rights and elections under the Bankruptcy Code consistent with this Agreement.  Pursuant to Section 365(n)(4) of the United States Bankruptcy Code, Owner requests that Vendor and its trustees perform this Agreement, provide to Owner all applicable intellectual property, and not interfere with the rights of Owner as provided in this Agreement.  
  5. Post-Termination.  In the event of any termination of this Agreement: (a) Owner (i) will remain liable for any amounts due under this Agreement prior to termination and through the remainder of the term if terminated prior to the end of the term and (ii) will be responsible for any and all repairs to the Project after Equipment is removed from the Project; (b) Vendor will return to Owner all Owner Confidential Information (as defined in Section 9 below) and Owner Art (as defined in Section 8 below) in its possession.

 

  1. PROPERTY. 
  1. Vendor’s Platform.  Vendor shall own and retain all right, title, and interest in and to Vendor’s Platform (except for any licensed content and software components included therein). Subject to the terms and conditions contained herein, Vendor grants to Owner a non-exclusive, non-transferable, non-sublicensable license to use Vendor’s Platform. Owner agrees not to copy, alter, modify, or create derivative works of Vendor’s Platform or otherwise use Vendor’s Platform in any way that violates the use restrictions contained in this Agreement. Vendor does not grant to Owner any license, express or implied, to the intellectual property of Vendor or its licensors.  Owner acknowledges that Vendor’s Platform contains trade secrets of Vendor and in order to protect such trade secrets and other interests Vendor may have in Vendor’s Platform, Owner agrees not to disassemble, decompile or reverse engineer Vendor’s Platform, or permit any third party to do so.
  2. Derived Data.  Vendor shall own and retain all right, title, and interest in and to any data derived by Owner’s or if applicable, Tenant’s use of Vendor’s Platform in compliance with this Agreement (collectively, the “Derived Data”).
  3. Owner Logos and Designs. Owner shall retain all right, title and interest in and to all of Owner’s logos, promotional graphics and related marketing designs (collectively, the “Owner Art”).  Owner agrees that Vendor may use Owner Art, and/or Owner’s corporate and/or trade name, solely for purposes of fulfilling its obligations hereunder, for listing Owner as a customer on Vendor’s website, and in Vendor’s proposals to current and prospective clients. For any other use of Owner Art, and/or Owner’s corporate and/or trade name, Vendor shall submit to Owner a request in writing, including by electronic mail, describing in detail the manner and extent to which Vendor intends to use the Owner Art, and shall supply to Owner any information related thereto as Owner may reasonably request.  Owner may consent to Vendor’s use any use of Owner Art in the exercise of Owner’s sole and absolute discretion.  Any such consent shall be in writing.

 

  1. CONFIDENTIALITY.  “Confidential Information” shall mean (a) the content of this Agreement, including any exhibits attached hereto; (b) all information and data that Owner provides to Vendor; and (c) Derived Data. Neither Party will use, sell or disclose any Confidential Information of the other Party except as specifically contemplated herein. The foregoing restriction does not apply to information that: (a) is independently developed by the receiving Party without access to the other Party’s Confidential Information; (b) at the time of disclosure is readily available without restriction to the public through no breach of this Section 9 by the receiving Party; (c) has been rightfully received from a third party authorized to make such disclosure; (d) has been approved for release in writing by the disclosing Party; (e) is required to be disclosed by a legal or governmental authority; or (f) is disclosed to a Party’s current or potential lenders, partners, investors or purchasers.  This Section 9 shall survive termination of this Agreement.

 

  1. MECHANIC’S AND MATERIALMEN’S LIENS.  Vendor shall not permit or suffer any mechanic’s or materialmen’s lien to be filed by any subcontractor, employee, or supplier Vendor of Vendor against Owner or the Project.  In the event any such lien is filed, Vendor shall cause such lien to be removed by posting the necessary bond pursuant to the requirements of any and all applicable legal entities having jurisdiction over said matter.  If Vendor fails to do so within ten (10) business days after the filing date of such lien, Owner will have the right (without the obligation ) to cause such lien to be removed, and Vendor shall indemnify, defend, and hold harmless Owner against all liability, cost, and expense incurred by Owner in causing such lien to be removed.  Owner may retain out of any payment due Vendor amounts sufficient to reimburse Owner for any such liability, cost and expense. For purposes of this Agreement, Owner’s purchase or lease of the Equipment shall not constitute a lien.

 

  1. MISCELLANEOUS.  
  1. Amendment; Waiver.  This Agreement shall not be amended, altered or changed, and no provision hereof shall be waived, except by written agreement signed by both Parties or, in the case of a waiver, by the Party waiving compliance.
  2. Independent Contractor.  Vendor shall perform all services required herein as an independent contractor of Owner.  Vendor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of Owner.
  3. Assignment.  Neither Party shall assign any of its rights, obligations or licenses hereunder without the prior written consent of the other Party; provided, however, that either Party may assign this Agreement and its rights and obligations hereunder to a successor of such Party by way of merger, consolidation or sale of all or substantially all of the assets or business of such assigning Party so long as such successor shall agree to be bound by all of the terms and provisions hereof. Notwithstanding the foregoing, in the event that the Project is sold, this Agreement shall be automatically assigned to the successor of the Project, and Owner agrees to provide at least three days’ notice to Vendor prior to such automatic assignment.
  4. Notices.  Any notices, demands, consents and reports necessary or provided for under this Agreement shall be in writing and shall be addressed as follows, or at such other address as Owner and Vendor may individually specify hereinafter in writing:

If to Owner        Name: ___________________________

Address: ___________________________        

City, State, Zip ___________________________

Attention:  ___________________________

Email:  ________________________

For Invoicing:

                                        Attention: ________________________

Email:  ___________________________

Phone: ___________________________

If to Vendor:        LUXER Corporation

Attn: Accounting Department

5040 Dudley Blvd.

McClellan Park, CA 95652

Email: accounting@luxerone.com

 

  1. No Waiver.  No waiver of any default hereunder shall be construed as a waiver of any subsequent breach.
  2. Governing Law.  This Agreement shall be construed in accordance with the laws of the State of California.
  3. Merger.  All previous negotiations and agreements between the Parties hereto, with respect to the transaction set forth herein, are merged in this Agreement, which fully and completely expresses the Parties’ rights and obligations with respect to the Services.
  4. Survival.  The terms, provisions, representations and certification contained in this Agreement shall not survive the termination of this Agreement unless specifically provided for in this Agreement.
  5. Attorneys’ Fees.  The prevailing Party in any action against the other related to this Agreement shall be entitled to have and to recover from the other Party its reasonable attorneys’ fees and other expenses in connection with such action.
  6. Force Majeure.  Neither Party shall be responsible for delays or damages or declared to be in default of this Agreement by reason of delays in performance or by reason of strikes, lockouts, accidents, acts of God, and other delays unavoidable or beyond such Party’s reasonable control.
  7. Unenforceability.  If any term or provision of this Agreement shall be found to be unenforceable, then, notwithstanding such term or provision, this Agreement shall be and remain in full force and effect and such term shall be deemed stricken.
  8. Recitals.  The Recitals are expressly incorporated herein.
  9. Counterparts.  This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which when taken together shall be deemed an original and shall constitute one and the same Agreement.  In order to facilitate the transaction contemplated herein, electronically mailed or facsimile signatures may be used in place of original signatures on this Agreement.  Each Party intends to be bound by the signatures on the electronically mailed or facsimile document, is aware that the other Party will rely on such signatures, and hereby waives any defenses to the enforcement of the terms of this Agreement based on the form of signature.