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Terms and Condition

These Terms and Conditions (the “Terms and Conditions”) are incorporated by reference into, and govern the obligations of (a) either (i) Recycle Track Systems, Inc., a New York corporation (“Pello US”), or (ii) its wholly-owned subsidiary, RecycleSmart Solutions, Inc., a British Columbia corporation (“Pello CA”), that is a party to Order Form (as defined below) in which these Terms and Conditions are referenced (as the case may be, “Pello”), and (b) the customer (the “Customer”) arising under and with respect to, the certain Order Form (as defined below) in which these Terms and Conditions are referenced, and any subsequent Order Form between Pello and Customer referencing these Terms.

These Terms and Conditions, all Order Forms, and any other terms or agreements referenced therein, collectively, the “Agreement.” In the event of a conflict between an Order Form and/or its Attachment and these Terms and Conditions, the Order Form and/or its attachments shall prevail.


1.1 Services Generally. Subject to the terms of this Agreement, Pello will provide Customer the Services described in one or more order forms (each, an “Order Form”) entered into by Pello and Customer that reference these Terms and Conditions, on the terms and conditions of this Agreement (including, for the avoidance of doubt, the terms and conditions contained in such Order Form) (“Services”). Pello may modify or add features to the Services at any time provided that any such modification does not materially reduce the functionality of the Services; Pello may require the payment of additional fees to access such modifications or new features, and such modifications or new features may require Customer to purchase new Sensors or upgrade Sensors.

1.2 Sensors Required. The Services require access to Customer Data as provided by one or more hardware devices deployed at Customer-serviced locations that interoperate with the Services (collectively, “Sensors”). Sensors may be provided from Pello to Customer on a “hardware-as-a-service” basis as part of the Services, to the extent described on the Order Form (all Sensors provided by Pello are “Pello Sensors”). Pello may permit the Services to interact with other Sensors that are not Pello Sensors; such Sensors are Third-Party Technology (as defined below). Customer is responsible for installing and maintaining all Sensors; Pello may from time to time make installation and maintenance services available to Customer under separate terms and conditions and subject to the payment of additional fees under such separate terms and conditions.

1.3 Implementation. Pello will perform certain implementation services if and to the extent expressly set forth in the Order Form, which may consist of tasks such as configuring imports from supported data sources into the Services, in each case as mutually agreed. Each of Pello and Customer will fulfill its respective obligations under the Implementation Plan (as defined in the Order Form) and will cooperate with the other to permit the timely performance thereunder. Pello’s obligations under the Implementation Plan are contingent upon Customer’s timely performance of its obligations, Customer’s reasonable cooperation and any assumptions included in the Order Form or otherwise communicated by Pello to Customer. All dates and fees under the Implementation Plan are estimates made for project planning purposes only. Any changes to the scope of the Implementation Plan shall become effective only upon the execution of a written amendment by authorized representatives of Pello and Customer.

1.4 Integration of Non-Pello Platforms. Customer may choose to use features within the Services that involve integrations with Third-Party Technology, and may enable data exchange between the Services and the applicable Third-Party Technology. “Third-Party Technology” means any platform, add-on, service or product provided by any third party that Customer elects to integrate or enable for use with the Services, including Customer’s own systems, software, connectivity and communications technologies (such as cellular networks, satellites, or internet service providers) or third party infrastructure (including hardware) such as Sensors or cameras. Use of Third-Party Technology is subject to Customer’s agreement with the Third-Party Technology provider. The Services may permit Authorized Users (as defined below) to transmit information to and from Third-Party Technology owned or managed by Customer, including via application programming interface, code snippet or other software, flat file upload, file transfer protocol, or otherwise. Any such Third-Party Technology, or any other Third-Party Technology owned or controlled by Customer that interacts with the Services or any output thereof, is a “Customer System”. Customer acknowledges and agrees that in order to perform the Services, Pello must be able to, and Customer hereby grants Pello the right to access, test, and periodically audit any Customer System and its connection to the Services. Pello does not control and has no responsibility or liability whatsoever for Customer Systems, including their security, functionality, operation, availability or interoperability.

1.5 Suspension. Pello may suspend Customer’s access to the Services in whole or in part if Customer breaches this Agreement or if Customer’s actions risk harm to Pello or other customers or the security, availability or integrity of the Services. Where practicable, Pello will use reasonable efforts to provide Customer with prior notice of the suspension. Once Customer resolves the issue requiring suspension, Pello will promptly restore Customer’s access to the Services.


2.1 Access. The Services may only be accessed by employees or representatives of Customer authorized by Customer (“Authorized Users”) who (i) have established a valid password and username (“Credentials”), and (ii) have agreed to abide by the terms and conditions of the Acceptable Use Policy at (or any successor website). Customer shall be solely responsible for: (a) all credentials established by or on behalf of Customer and any Authorized User, (b) verifying the identity of each Authorized User and validating use of Credentials by each Authorized User, and (c) monitoring Authorized User access to the Services to ensure that only those permitted to access and use the Services do so. Customer shall institute contractual, technological and/or functional procedures and processes as necessary to monitor use of Credentials and to protect and require Authorized Users to protect their Credentials. As between Pello and Customer, Customer shall assume all responsibility and liability with respect to access and use of the Services by or on behalf of Customer and all Authorized Users, whether or not such access is a result of compromised, lost, or stolen Credentials, including ensuring

compliance with all of the obligations and restrictions set forth in this Agreement and with applicable law. Customer shall promptly inform Pello of any unauthorized use of the Services or breach of this Agreement or applicable law by Customer or any of its Authorized Users.

2.2 Use Restrictions. Customer will not, directly or indirectly, and shall not permit any third party to: (i) reverse engineer, decode, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services; (ii) copy, in whole or in part, the Services or any component thereof; (iii) modify, enhance, translate, combine with other programs, or create derivative works based on the Services; (iv) sublicense, sell, rent, lease, transfer, distribute, or use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (v) remove any proprietary notices or labels. Customer shall not use the Services if and to the extent Customer is legally prohibited to do so. Customer shall not use the Services if Customer is a competitor of Pello or for purposes of monitoring the Services’ availability, performance or functionality, or for any other benchmarking or competitive purposes.

2.3 Compliance. Customer represents and warrants that Customer will use the Services (and will ensure that use of the Services by or on behalf of Customer and Authorized Users) is in compliance with this Agreement, the Acceptable Use Policy, and all applicable laws, rules and regulations.

2.4 Equipment. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, Sensors, cameras, modems, hardware, servers, software, operating systems, networking, web servers and related information, and the like (collectively, “Requisites”). Customer shall also be responsible for the Requisites in all respects, including maintaining the security of the Requisites.


3.1 Hardware-as-a-Service. Subject to the terms of this Agreement, Pello hereby leases to Customer and Customer hereby leases from Pello the Pello Sensors identified on an Order Form during the Service Term (as defined in the Order Form); provided, however, that the Service Term shall terminate upon termination of this Agreement. Customer may use the Pello Sensors solely for its internal purposes at the Customer premises at which the Pello Sensors are installed and commissioned by Pello, and solely in accordance with applicable laws and the technical written specifications for the Pello Sensors as may be provided by Pello to Customer from time to time (“Specifications”). Customer may not sublet or lend the Pello Sensors or permit the Pello Sensors to be used by anyone other than Customer or Customer’s employees or contractors. Customer shall operate the Pello Sensors in accordance with the Specifications.

3.2 Delivery; Responsibility. Pello will ship the Pello Sensors to Customer at Customer’s centralized receiver location within thirty (30) days following Pello’s receipt of Customer’s payment of any required Fees as described in the Order Form. Shipping from such location to each Customer site is Customer’s responsibility and will occur at Customer’s sole cost. Customer is responsible for providing all ancillary equipment and services required to run and maintain the System, as instructed by Pello or as otherwise described in the Specifications (including power, internet access, and mounting locations). Per the Order Form, Pello will commission each Pello Sensor once, after Customer’s receipt of the System and at a mutually agreeable time, in the location(s) reasonably specified by Customer. If Customer moves any Pello Sensor from the container at which it was originally commissioned by Pello, (i) Customer shall follow the best practices and other instructions communicated by Pello regarding any move of any Pello Sensor (including to the extent explained at the time of initial commissioning), and (ii) any damage to or malfunction of the Pello Sensor that occurs due to such move shall not be covered by the warranty set forth in this Agreement.

3.3 Title. Title to each Pello Sensor during the Service Term shall remain with Pello at all times, and Customer shall have no right, title or interest therein except as expressly set forth in this Agreement. Customer, at its expense, will protect and defend Pello’s title to each Pello Sensor and will keep each Pello Sensor free and clear from any and all claims, liens, encumbrances and legal processes of Customer’s creditors and other persons. Customer may not transfer a Pello Sensor to any third party, whether by lease, loan, sale, distribution or otherwise. Each Pello Sensor shall at all times be and remain personal property notwithstanding that any such Pello Sensor may now or hereafter be affixed to realty. Pello may display notice of its ownership of each Pello Sensor by affixing an identifying stencil, legend, plate or any other indicia of ownership, and Customer will not alter, obscure or remove such identification.

3.4 Use of Pello Sensors. Customer shall be entitled to possess and use the Pello Sensors in accordance with this Agreement, provided that Customer is in compliance in all respects with the terms of this Agreement and that such possession and use are in conformity with all applicable laws, Customer’s insurance policies, and any Pello installation requirements and the Specifications. Customer shall procure and maintain all permits, authorizations, consents and licenses, if any, necessary for its installation and use of the Pello Sensors. Pello may, upon reasonable prior notice to Customer and during regular business hours, inspect the Pello Sensors at the premises of Customer or wherever the Pello Sensors may be located. Customer shall promptly notify Pello of all details arising out of any change in location of any Pello Sensor, any alleged encumbrances thereon, or any accident, harm or injury allegedly resulting from the use or operation thereof or any claim relating thereto. Customer shall make no modifications or alterations to any Pello Sensor or component thereof.

3.5 Loss. Customer bears the entire risk of any Pello Sensor being lost, stolen, destroyed or otherwise rendered unfit or unavailable for use from any cause whatsoever (“Event of Loss”) while the Pello Sensor is in Customer’s possession. If an Event of Loss occurs, Customer shall promptly notify Pello thereof. Within sixty (60) days following an Event of Loss, unless the Pello Sensor is lost or stolen, Customer shall uninstall and return to Pello, at Customer’s sole cost, the affected Pello Sensor, and shall pay to Pello the purchase price for a replacement Pello Sensor.

3.6 Customer Responsibility for Compatibility. Customer acknowledges that Customer has verified the compatibility of the Pello Sensors with the site and specific hardware and related equipment and utilities where the Pello Sensors will be used. Such determination is Customer’s sole responsibility. Lack of compatibility is not a valid claim under Pello’s warranty and does not entitle Customer to any refund

of any kind of any Fees. Customer is solely responsible for determining compliance with all relevant laws in Customer’s jurisdiction regarding the installation and use of Pello Sensors. Customer is responsible for installation of Pello Sensors.

3.7 No Teardowns. Customer shall not, and shall not permit anyone, to, modify, repair, disassemble, analyze, or reverse engineer any Pello Sensor, or attempt to do any of the foregoing, or have a third party do any of the foregoing on its behalf.

3.8 Limitations on Pello Sensor Warranty; Documentation. Pello does not provide any warranty with respect to Pello Sensors other than as expressly set forth below. While Pello uses commercially reasonable efforts to provide suitable illustrations and descriptions relating to Pello Sensors on its website (collectively, “Documentation”), Documentation does not form part of the Agreement nor amount to any representation or warranty by Pello. Customer acknowledges that it is not relying on any representations made by Pello outside of the Agreement. Any suggestions or advice given by Pello or its employees or agents to Customer or its employees or agents (if any) as to the application or use of Pello Sensors which is not contained in the Specifications provided by Pello shall not be construed as any representation or warranty of Pello and are hereby disclaimed in their entirety. If Customer acts on the foregoing, Customer does so at its own risk. Other than the express warranties made by Pello in the Limited Pello Sensor Warranty, Pello hereby disclaims all other warranties, express and implied, including all warranties, conditions or other terms implied by statute, common law, trade usage or otherwise. Customer is solely responsible for all loss, liability, damage, or other harm that may result from Customer’s use of a Pello Sensor.

3.9 Limited Warranty. This paragraph is the “Limited Pello Sensor Warranty.” This Limited Pello Sensor Warranty is non-transferable and runs only to Customer; there are no third party beneficiaries. In lieu of all other warranties, express or implied, Pello warrants that the Pello Sensor will be free from defects in materials and workmanship during the Service Term for which they are provided (“Warranty Period”). If Pello determines in its discretion that the Pello Sensor is defective due to flaws in material or workmanship during the Warranty Period, Pello will repair or replace the Pello Sensor, at Pello’s sole discretion. Customer must uninstall the Pello Sensor and ship it to Pello at Customer’s sole cost to obtain any service under this Limited Pello Sensor Warranty. Pello may use new or refurbished Pello Sensor or components for the repair or replacement at Pello’s option and expense. The foregoing is Customer’s exclusive remedy for breach of this Limited Pello Sensor Warranty. Pello shall have no obligations with respect to the foregoing warranty unless: (a) Pello is notified in writing of any deficiency during the Warranty Period, which notice shall include a reasonably detailed explanation of the alleged deficiency; (b) the Pello Sensor with the alleged deficiency is promptly returned to Pello, or Pello is permitted to inspect it on-site, at Pello’s option, and (c) Pello’s examination of the Product determines that such alleged deficiency actually exists and occurred in the course of proper and normal use. For the purpose of verifying an alleged deficiency, Pello may require that Customer provide certain documentation of the alleged deficiency, including photographic evidence or access to data. A Pello Sensor that has been repaired or replaced pursuant to this Limited Pello Sensor Warranty will be covered by the terms of this Limited Pello Sensor Warranty for the remaining Warranty Period. This Limited Pello Sensor Warranty does not apply to any Pello Sensor or parts thereof that (a) have not been installed, handled, stored or used pursuant to the instructions provided by Pello; (b) have been subject to alteration, modification, tampering, improper maintenance or repair; (c) have been damaged by abuse or misuse of the Pello Sensor, including by a failure to exercise due caution in cleaning, maintaining or using the Pello Sensor; (d) have been used with non-Pello hardware or software or (e) have been subject to physical abuse, breakdowns, fluctuations or interruptions in electrical power or telecommunications network, acts of God or extreme weather, including but not limited to hurricane, flood, tornado or lightning.


4.1 Customer Data. As between Customer and Pello, Customer is solely responsible for the accuracy, completeness, validity, authorization for use (including transmission) and integrity of all Customer Data, regardless of form or format. “Customer Data” is the information provided by or on behalf of Customer to Pello to enable the provision of the Services (including all information provided by any Customer System or any Sensor through any connection method and all information provided by agents of Customer, including all Employee Data). Customer acknowledges and agrees that (i) Customer will be required to provide certain Customer Data to the Services to enable their operation, including through Sensors, and (ii) the Services are designed to act on direction given to it by or on behalf of the Customer, and that Customer is solely responsible for such direction and the results thereof. Customer represents and warrants that Customer has the right, in compliance with applicable law, to provide all Customer Data to Pello, and has obtained all necessary consent where applicable, including to place Sensors in each location in which they are placed, to capture data with such Sensors, to cause such data to be processed by Pello under this Agreement, and including the consent of any applicable agent of Customer (such as an employee), in each case for the Services to capture such data as the Services may capture and to perform such actions as the Services may perform. Customer agrees that it shall comply, at all times during the Term, with all applicable laws related to data privacy and the handling of the Customer Data.

4.2 License to Customer Data. Customer hereby grants to Pello and its relevant service providers a limited, non-exclusive, royalty-free, right and license, with a right to sublicense (through multiple tiers), to access, store, reproduce, display, handle, perform, transmit, test, modify, process, combine with other data, and otherwise use Customer Data (i) for performance of Pello’s obligations and exercise of Pello’s rights under this Agreement; and (ii) to create derivatives of such data, solely in de-identified and aggregated form (such derivatives, “Aggregated Data”). Customer agrees that Pello shall own all right, title, and interest in all Aggregated Data and in such improvements and derivative works.


5.1 Services. Pello or its licensor(s), as applicable, shall own and retain all right, title and interest in and to (a) the Services and all intellectual property, improvements, enhancements or modifications thereto, (b) any software, applications, inventions, intellectual property or other technology developed in connection with Services, implementation services or support, including any of the foregoing developed by Pello to connect to or receive Customer Data from any Customer System, and (c) all intellectual property rights related to any of the foregoing. Nothing contained herein shall be construed as granting Customer any rights in or to the Services or any intellectual property controlled by Pello or its licensor(s), as applicable, other than the right to use the Services as expressly stated herein.

5.2 Feedback. The parties acknowledge and agree that Pello may solicit and Customer may provide to Pello suggestions, ideas, enhancement requests, feedback, recommendations, or other information relating to the Services (the “Feedback”). Customer hereby grants to Pello a non-exclusive, perpetual, irrevocable, royalty-free, right and license, with a right to sublicense (through multiple tiers), to disclose, use and incorporate the Feedback for any lawful purpose.


Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Pello includes information regarding features, functionality and performance of the Service. Confidential Information of Customer includes Customer Data,). The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information and (iii) to notify the Disclosing Party promptly and in writing of the circumstances surrounding any suspected possession, use or knowledge of any such Confidential Information or any part thereof at any location or by any person or entity other than those authorized by this Agreement. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public without a breach by the Receiving Party of the terms of this Agreement, (b) was in its possession or known by Receiving Party prior to receipt from the Disclosing Party, (c) was rightfully disclosed to Receiving Party without restriction by a third party, or (d) was independently developed by Receiving Party without use of or reference to any Confidential Information of the Disclosing Party. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent required by a court or other governmental authority, provided that the Receiving Party promptly notifies the Disclosing Party of the disclosure requirement and cooperates with the Disclosing Party (at the latter’s expense and at its request) to resist or limit the disclosure.


7.1 Fees Generally. Customer will pay Pello the then applicable fees described in the Order Form for the Services, including access to any Pello Sensors, and any implementation services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services requires the payment of additional fees (per the terms of this Agreement or as otherwise set forth within the Services), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Pello reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Service Term (including the then-current renewal term), upon thirty (30) days prior notice to Customer. If Customer believes that Pello has billed Customer incorrectly, Customer must provide written notice to Pello specifying the alleged issue no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Fees are not refundable. Overdue unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate suspension or termination of the Services. Customer shall be responsible for all taxes associated with Services other than taxes based on Pello’s net income.

7.2 Method of Payment. Pello may use a third party payment service to bill Customer through an online account. By submitting payment account information, Customer grants Pello the right to store and process such information with the third party payment service and agrees that Pello will not be responsible for any failures of the third party, including any failures to adequately protect such information. The processing of payments will be subject to the terms, conditions and privacy policies of such third party payment service in addition to this Agreement. Pello may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Pello thirty (30) days after the mailing date of the invoice.


8.1 Term. Subject to earlier termination as provided below, this Agreement is for the Service Term as specified in the Order Form, and shall be renewed as set forth in the Order Form (collectively, the “Term”), unless either party provides written notice of non-renewal as set forth in the Order Form.

8.2 Termination for Cause. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Without limiting the foregoing, Pello may terminate this Agreement immediately on notice (or may suspend the Services), without liability, to comply with any order by a government authority, if performance would violate applicable law, or if Customer attempts to access (or to force Pello to grant Customer access) to any Employee Information.

8.3 Effect of Termination. Within thirty (30) days after the termination of this Agreement, each party shall destroy the Confidential Information of the other party then in its possession, and Pello shall destroy all Employee Information. Pello has no obligation to retain Customer Data for more than thirty (30) days after any termination of this Agreement. Upon Pello’s request (a “Return Request”) within thirty (30) days after any termination of this Agreement (the “Return Request Period”), Customer shall, within sixty (60) days of such request, return to Pello, at Customer’s expense, any sensors identified by Pello for return (the “Identified Sensors”). Pello shall return to Customer any deposit held by Pello within thirty (30) days after the earlier of (i) if Pello has not made any Return Request prior to the end of the Return Request Period, the end of the Return Request Period or (ii) otherwise, subject to Section 3.5, above, Pello’s receipt of the Identified Sensors. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.


9.1 Security. Pello uses industry standard security precautions designed to prevent unauthorized access to the Services as described in its Security Policy which is Confidential Information of Pello, a summary of which may be made available to Customer at Customer’s request). Pello shall promptly notify Customer of any material unauthorized use of the Services by an unauthorized person or entity that affects the security of the Customer’s Confidential Information and that is known to Pello. The parties shall reasonably assist each other in investigating such unauthorized act and take such action as is reasonably necessary to prevent the continuation or recurrence thereof.



10.1 Damages Waiver. Except for Excluded Claims, neither party (nor its suppliers) will have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security mechanisms, interruption of business or any indirect, special, incidental, reliance or consequential damages of any kind, even if informed of their possibility in advance. Without limiting the foregoing, Pello is not liable for any damages or other amounts in connection with any disputes or claims between or among Customer or any customer, agent or employee of Customer.

10.2 Liability Cap. Except for Excluded Claims, each party’s entire liability arising out of or related to this Agreement will not exceed in aggregate the amount of Fees paid or payable by Customer to Pello in respect of the Services during the six (6) months prior to the act or omission giving rise to the claim.

10.3 Excluded Claims. “Excluded Claims” means: (a) Customer’s breach of Sections 2.2, 2.3, or 4.1 or (b) amounts payable under Section 11. 10.4 Nature of Claims and Failure of Essential Purpose. The waivers and limitations in this Section 10 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.


11.1 By Pello. Pello will defend Customer from and against any third-party claim to the extent alleging that the Services, when used by Customer as authorized in this Agreement, infringes the claimant third party’s registered U.S. or Canadian patent, copyright or trademark, and will indemnify and hold harmless Customer against any damages or costs awarded against Customer (including reasonable attorneys’ fees) or agreed in settlement by Pello resulting from the claim. In response to an actual or potential infringement claim, if required by settlement or injunction or as Pello determines necessary to avoid material liability, Pello may at its option: (a) procure rights for Customer’s continued use of the Services, (b) replace or modify portions of the Services to avoid infringement without reducing the Services’ overall functionality or (c) terminate the affected Order Form and refund to Customer any pre-paid, unused Fees for the terminated portion of the applicable Service Term. Pello’s obligations in this Section 11.1 do not apply (1) to infringement resulting from Customer’s modification of the Services or use of the Services in combination with items not provided by Pello, (2) to unauthorized use of the Services, (3) to infringement arising from a breach by Customer of any provision of this Agreement, (4) if Customer settles or makes any admissions about a claim without Pello’s prior consent or (5) claims indemnifiable under Section 11.2. This Section 11.1 sets out Customer’s exclusive remedy and Pello’s entire liability regarding infringement of third-party intellectual property rights.

11.2 By Customer. Customer will defend Pello and its affiliates and its and their directors, officers, employees, agents, and beneficial owners (“Pello Indemnitees”) from and against any third-party claim to the extent arising in connection with (i) any Customer Data provided by or on behalf of Customer, including by any customer, agent or employee of Customer or as output of any Customer System, (ii) Customer’s use of the Services, including Customer Systems, and any Pello connection to any Customer System, including any misuse of or failure to secure Credentials resulting in any alleged or actual breach, (iii) any failure by Customer to secure any required consents of Authorized Users, any customer, agent or employee of Customer, or any subject of Customer Data; or (iv) any breach by Customer of any provision in this Agreement, and will indemnify and hold harmless all Pello Indemnitees against any damages or costs awarded against any Pello Indemnitee (including reasonable attorneys’ fees) or agreed in settlement by Customer resulting from such claims.

11.3 Requirements. The indemnified party shall provide to the indemnifying party: (a) prompt notice of the claim (except to the extent a failure to receive notice does not materially prejudice the defense of the claim), (b) the exclusive right to control and direct the investigation, defense and settlement of the claim and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying

party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Services). The indemnified party may participate in a claim with its own counsel at its own expense.


12.1 Publicity. Neither party may publicly announce this Agreement except with the other party’s prior consent or as required by applicable law. However, Pello may include Customer and its trademarks in Pello’s customer lists and promotional materials but will cease this use at Customer’s written request.

12.2 No Legal Advice. Pello does not and shall not provide Customer with any legal advice regarding compliance with laws, rules or regulations in the jurisdictions in which Customer uses the Services, including those related to recycling, hazardous waste, disposal, traffic, data privacy, security, or confidentiality of information. Customer acknowledges and agrees that the Services may be used in ways that do and do not comply with such laws, rules or regulations and it is Customer’s sole responsibility to monitor its compliance with, and use the Services solely in strict compliance with, all such relevant laws, rules or regulations. Pello offers no assurance that Customer’s use of the Services under the terms of this Agreement shall not violate any law or regulation applicable to Customer.

12.3 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

12.4 Assignment. This Agreement is not assignable, transferable or sublicensable by Customer except with Pello’s prior written consent. Pello may transfer and assign any of its rights and obligations under this Agreement without consent.

12.5 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. Without limiting the foregoing any terms in any Customer purchase order or similar document are hereby rejected in their entirety and are superseded by this Agreement.

12.6 Amendment; Waiver. Any amendments, modifications or supplements to this Agreement must be in writing and signed by each party’s authorized representatives or, as appropriate, agreed through electronic means provided by Pello. Nonetheless, with notice to Customer, Pello may modify these Terms and Conditions and any policies referenced herein, including to reflect new features or changing practices, on written notice to Customer (email or other electronic means being sufficient). The terms in any Customer purchase order or business form will not amend or modify this Agreement and are expressly rejected by Pello; any of these Customer documents are for administrative purposes only and have no legal effect. The waiver by either party of a breach or a default of any provision of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party.

12.7 Independent Contractors; Beneficiaries. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Pello in any respect whatsoever. This Agreement is for the sole benefit of the Parties and their respective permitted successors and assignees.

12.8 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

12.9 Force Majeure. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license or natural disaster.

12.10 Subcontractors. Pello may use subcontractors. Pello remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.

12.11 Governing Law. (a) If Pello US is party to this Agreement, this Agreement shall be governed by the laws of the State of New York, United States, without regard to its conflict of laws provisions. The jurisdiction and venue for actions related to this Agreement will be the state and federal courts located in New York City, New York State, United States, and each party hereby attorns and submits to the exclusive jurisdiction of such courts. (b) If Pello CA is party to this Agreement, this Agreement shall be governed by the laws of the Province of British Columbia, Canada, without regard to its conflict of laws provisions. The jurisdiction and venue for actions related to this Agreement will be the provincial and federal courts located in Vancouver, British Columbia, Canada, and each party hereby attorns and submits to the exclusive jurisdiction of such courts.

12.12 Currency. (a) If Pello US is party to this Agreement, all prices and fees are expressed in US Dollars. (b) If Pello CA is party to this Agreement, all prices and fees are expressed in Canadian Dollars.

12.13 Prevailing Party. Should any dispute arise regarding this Agreement, the prevailing party shall be entitled to receive its reasonable legal fees and costs as awarded by a court of competent jurisdiction.

12.14 Priority of Documents. In the case of any conflict or inconsistency between the terms of these Terms and Conditions (or any other aspect of this Agreement) and any Order Form, the terms of these Terms and Conditions will prevail, except as specifically stated

otherwise in the Order Form, and except to the extent that the Order Form provides a term that is specific to the Services contracted for under the Order Form, the purpose of which would be vitiated due to a conflicting term in these Terms and Conditions (for example, if the Order Form permits Customer to sublicense or use for the benefit of a third party some aspect of the Services, Section 2.2 of these Terms and Conditions shall not be read to vitiate that right).

12.15 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.

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