Last Updated: January 21, 2025

1. Scope and Applicability
2. Definitions
3. Effective Date and Subscription Term
4. Orders
5. Fees and Payment
6. Shipping
7. Equipment
8. Returns
9. Software and Documentation
10. Services
11. Third-Party Products
12. Customer Responsibilities
13. Use Restrictions
14. Representations and Warranties
15. Termination
16. Intellectual Property Rights
17. Disclaimer
18. Limitations of Liability
19. Insurance
20. Governing Law, Jurisdiction, and Venue
21. Export Controls
22. Force Majeure
23. Federal Government Orders
24. Miscellaneous
    • Schedule A: HaaS Solutions and Included Offerings

1.Scope and Applicability

These Hardware-as-a-Service (“HaaS”) Terms and Conditions (these “Terms”), together with Schedule A: HaaS Solutions and Included Offerings(as provided below), any applicable Additional Use Terms (as defined below), and any other attachments incorporated by reference into these Terms, shall govern the provision of any HaaS Solution (as defined below) included in each Order (as defined below) executed by and between TSI Incorporated, a Minnesota corporation with its principal place of business at 500 Cardigan Road, Shoreview, MN 55126 (“TSI”), and the customer set forth in such Order (“Customer”). TSI and Customer are each referred to herein as a “Party” and collectively as the “Parties.”

The Parties acknowledge and agree that they have read and understand these Terms and, upon execution of the applicable Order, are legally bound to these Terms, together with the applicable Order, Schedule A, any applicable Additional Use Terms, and any other attachments incorporated by reference into these Terms (collectively, this “Agreement”).

2.Definitions

Capitalized terms in these Terms have the meanings assigned in this Section 2 or in the section where they are first defined.

• “Accessories” means the non-consumable items specified in Schedule A that TSI rents to Customer as part of the HaaS Solution identified in the applicable Order for Customer’s use solely during the Subscription Term.
• “Additional Use Terms” has the meaning set forth in Section 9.1.
• “Affiliate” means any present or future entity controlling, controlled by, or under common control with, a Party.
• “Annual Refresh Services” means the scheduled maintenance services outlined in Schedule A, under the broader category of the Services, that TSI performs for Customer during the Subscription Term as part of the HaaS Solution identified in the applicable Order.
• “Authorized Users” means Customer’s employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the HaaS Solution under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to and use of the HaaS Solution has been purchased hereunder.
• “Business Day” means any day other than a Saturday, Sunday, or a day when commercial banks in Minnesota, U.S.A., are authorized or required by law to close.
• “Calendar Day” means any day of the year, including weekends and U.S. federal holidays. 
• “Consumables” means the consumable items specified in Schedule A that TSI provides to Customer as part of the HaaS Solution identified in the applicable Order 
• “Defects” and “Defective Unit” have the meanings set forth in Section 14.3.
• “Discontinued Unit” has the meaning set forth in Section 7.6.
• “Documentation” means any TSI-published operator’s manuals, reference guides, technical specifications, instructions, or other materials provided or made available by TSI to Customer, in any form or medium, that describe the functionality, components, features, or requirements of the specific HaaS Solution included in the applicable Order.
• “Effective Date” means the date on which TSI accepts the applicable Order in accordance with Section 4.1.
• “Equipment” means, collectively, the Hardware, Accessories, and Consumables, as applicable. 
• “Export Control Laws” has the meaning set forth in Section 21.
• “Fees” means any amounts payable by Customer to TSI under this Agreement, including Subscription Fees, Termination Fees, Restoration Charges, Replacement Charges, and any other applicable charges.
• “Force Majeure Event” has the meaning set forth in Section 22.
• “HaaS” has the meaning set forth in Section 1. 
• “HaaS Solution” means the specific subscription-based HaaS offering identified in the applicable Order that TSI provides to Customer. Each HaaS Solution comprises the Hardware, Accessories, Consumables, Software, and Services detailed in Schedule A corresponding to the HaaS Solution identified in the applicable Order.
• “Hardware” means the TSI hardware or instrument(s) specified in Schedule A that TSI rents to Customer as part of the HaaS Solution identified in the applicable Order for Customer’s use solely during the Subscription Term.
• “Initial Equipment” means the first set of Equipment TSI provides to Customer as part of the HaaS Solution identified in the applicable Order.
• “Intellectual Property Rights” means all registered and unregistered rights, whether currently existing or applied for, related to patents, copyrights, moral rights, works of authorship (including software copyrights), trademarks, trade secrets, database protection, or other intellectual property laws, as well as any similar or equivalent rights or protections worldwide.
• “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
• “Limited Warranty”has the meaning set forth in Section 14.3.
• “Nonconforming Unit”has the meaning set forth in Section 7.5.
• “Order” means the written order form, purchase order, or other ordering document submitted to TSI for the provision of any HaaS Solution, which is accepted by TSI in accordance with Section 4.1.
• “Repair Services” means the repair services outlined in Schedule A, under the broader category of Services, that TSI performs for Customer during the Subscription Term as part of the HaaS Solution identified in the applicable Order.
• “Replacement Charges” has the meaning set forth in Section 8.4.
• “Replacement Unit” means a Unit provided by TSI as a substitute for Customer’s then-current Unit.
• “Restoration Charges” has the meaning set forth in Section 8.3.
• “Return Conditions” has the meaning set forth in Section 8.2.
• “Return Window” has the meaning set forth in Section 8.1.
• “Services” means, collectively, the Annual Refresh Services, Repair Services, and any other services specified in Schedule A that TSI performs for Customer during the Subscription Term as part of the HaaS Solution identified in the applicable Order.
• “Site”  means the location where Customer uses the Equipment, as specified in the applicable Order or as otherwise approved in advance in writing by TSI.
• “Shipping Destination” means the location to which TSI ships the Equipment, as specified in the applicable Order or as otherwise approved in advance in writing by TSI.
• “Software” means the software and firmware embedded in, installed on, or provided with the Hardware, as well as any additional software offerings specified in Schedule A that TSI provides to Customer during the Subscription Term as part of the HaaS Solution identified in the applicable Order .
• “ Subscription Fees” means the recurring charges owed by Customer to TSI for access to and use of the HaaS Solution specified in the applicable Order.
• “Subscription Term” has the meaning set forth in Section 3.
• “Unit” means a single, distinct item of Hardware, Accessories, or Consumables, as applicable.
• “U.S. Federal Government Contract” has the meaning set forth in Section 23.
• “Taxes” has the meaning set forth in Section 5.4.
• “Termination Fees” has the meaning set forth in Section 15.2.
• “Third-Party Products” means any products, equipment, materials, information, or resources provided by a third party, in any form or medium, including open-source or third-party software, documentation, data, content, or specifications, that are not owned, developed, or proprietary to TSI.

3.Effective Date and Subscription Term

Unless earlier terminated in accordance with Section 15, this Agreement shall be effective as of the Effective Date and shall continue for a period of five (5) years (the “Subscription Term”).

4.Orders

4.1.Order Acceptance.TSI reserves the right to reject any Order. An Order becomes binding only upon TSI’s acceptance, which is deemed to occur on the date TSI ships the Initial Equipment.

4.2.Exclusion of Customer Terms. Any additional or different terms provided by Customer in connection with an Order—whether included in a purchase order, blanket instructions, terms of purchase, or any other communication—shall be deemed a material alteration of these Terms and are expressly rejected. Such terms shall have no force or effect unless otherwise agreed by TSI in writing.

4.3.Order Modifications. No modifications to any Order shall be valid or enforceable unless otherwise agreed by TSI in writing. Any modifications or additions proposed by Customer that do not meet this requirement shall be deemed null and void.

4.4.Electronic Processing Systems. Unless otherwise agreed, TSI is not obligated to utilize Customer’s centralized purchasing or electronic transaction processing systems for managing Orders or invoices.

5.Fees and Payment

5.1.Subscription Fees.Customer shall pay the Subscription Fees set forth in each Order in recurring monthly installments. Subscription Fees are non-refundable unless otherwise expressly set forth in this Agreement.

5.2.Payment Terms.TSI shall invoice Customer, and Customer shall pay all Fees within thirty (30) Calendar Days of the invoice date, unless otherwise agreed by TSI in writing.Any overdue amounts will accrue interest at the maximum rate permitted under applicable Law. If Customer disputes any part of an invoice, they must notify TSI in writing within ten (10) Business Days from the invoice date, including detailed supporting documentation to substantiate the dispute. Any undisputed amounts shall remain payable by the invoice due date, regardless of the pending resolution of the disputed portion.

5.3.Automatic Payments.Customer may have the option to authorize automatic monthly payments for Subscription Fees using a designated payment method, such as a bank account or credit card. If TSI offers automatic payments, TSI will provide Customer with the necessary instructions and requirements for authorization and payment processing. Customer is responsible for ensuring sufficient funds or credit availability for each scheduled payment and for promptly notifying TSI of any changes to payment method information, including account details or expiration dates for credit cards. Any payment failures will be treated as overdue, and interest will accrue in accordance with Section 5.2.

5.4.Taxes.Customer is responsible for all applicable federal, state, and local taxes, duties, or similar governmental assessments, including sales and use taxes, associated with purchases under this Agreement (“Taxes”), unless otherwise agreed by TSI in writing. If TSI is legally required to collect such Taxes on behalf of Customer, the appropriate amount will be included on the invoice and paid by Customer, unless Customer provides TSI with a valid tax exemption certificate prior to invoicing.

6.Shipping

6.1.Shipments. TSI will ship the Initial Equipment and any necessary Replacement Units to the Shipping Destination. The shipping method for both shipments and returns shall be determined at TSI’s discretion unless otherwise agreed in writing by TSI. All quoted delivery dates are estimates and will commence only after TSI has confirmed receipt of all necessary documents required to effect shipment. TSI reserves the right, at its sole discretion, to make partial shipments or deliveries of the Equipment without incurring any liability or penalty.

6.2.Shipping Costs. TSI shall bear all standard shipping costs associated with shipments and returns required under this Agreement, including: (a) the shipment of the Initial Equipment; (b) the shipment of Replacement Units; and (c) returns made by Customer in accordance with the return procedures specified in Section 8.

Shipping costs incurred by Customer using methods not authorized in this Agreement will not be eligible for reimbursement. TSI may arrange for expedited shipping at Customer’s expense.

7.Equipment

7.1.Rented Equipment. With the exception of Consumables, the Equipment, including any necessary Replacement Units, is provided by TSI on a rental basis, not as a sale, for Customer’s use at the Site solely during the Subscription Term. The Equipment, which may be new or reconditioned, is provided solely to facilitate Customer’s access to and use of the HaaS Solution. Customer must return the Equipment as outlined in this Agreement, including in accordance with the return procedures specified in Section 8.

7.2.Title.With the exception of Consumables, TSI retains ownership and title to the Equipment at all times, regardless of whether the Equipment is attached or affixed to real property.

7.3.Recharacterization. The Parties agree that, if this Agreement is recharacterized under applicable Law as a secured financing or a lease intended for security, it shall be deemed a security agreement, and this Section 7.3 shall be deemed to grant TSI by Customer a lien on and first priority security interest in the Equipment, excluding Consumable, and all proceeds thereof, to secure the payment of Customer’s obligations under this Agreement. The Parties agree to execute, acknowledge, deliver, file, and record, or cause to be executed, acknowledged, delivered, filed, and recorded such further documents (including Uniform Commercial Code financing statements), and to do all such things and acts, necessary to ensure that such security interest would be a perfected first priority security interest under applicable Law.

7.4.Risk of Loss.For shipments and returns covered by TSI in accordance with Section 6.2, TSI assumes all risk of loss or damage to the Equipment during transit until delivery to the Shipping Destination or, in the case of returns, receipt by TSI at its facility. Customer assumes all risk of loss or damage to the Equipment, regardless of cause or insurance coverage, from the time the Equipment is delivered to the Shipping Destination until it is delivered to TSI’s designated carrier in accordance with the return procedures in Section 8. Loss or damage to the Equipment does not relieve Customer of its obligation to pay any Fees or fulfill any other obligations under this Agreement. Customer must promptly notify TSI of any loss, theft, or damage to the Equipment.

7.5.Acceptance. Customer will be deemed to have accepted a Unit unless it provides TSI, within fifteen (15) Business Days following the date of delivery of such Units to the Shipping Destination, written notice that such Unit does not materially conform. Such notice must state with specificity all nonconformities and furnish such other written evidence or other documentation as may be reasonably required by TSI. All nonconformities not so specified will be deemed waived by Customer and such Unit will be deemed accepted by Customer.

If Customer timely notifies TSI of any Unit it believes does not materially conform, and TSI agrees, in its reasonable discretion, that such Unit does not materially conform (each such Unit, a “Nonconforming Unit”): (a) TSI shall replace the Nonconforming Unit with a Replacement Unit; and (b) Customer shall return the Nonconforming Unit in accordance with the return procedures specified in Section 8.

7.6.End of Support. TSI may designate certain Equipment as “end of life,” “end of service,” “end of support,” “discontinued,” or a similar status (each, a “Discontinued Unit”). TSI will make commercially reasonable efforts to continue providing any contracted Unit designated as a Discontinued Unit but cannot guarantee its availability.

If a contracted Unit is designated as a Discontinued Unit: (a) TSI shall replace the Discontinued Unit with a suitable Replacement Unit, which will be an alternative model or variation with form, fit, and function at least equivalent to the original contracted Unit; and (b) Customer shall return the Discontinued Unit in accordance with the return procedures specified in Section 8, as applicable.

If TSI, despite commercially reasonable efforts, cannot provide a suitable Replacement Unit, TSI will notify Customer, and either Party may terminate this Agreement by providing written notice to the other.

7.7.Replacement Units.Unless otherwise limited or excepted by this Agreement, each Replacement Unit: (a) may be new or reconditioned; (b) will be of the same model or variation as the Unit it replaces; and (c) will have a unique serial number that differs from the Unit it replaces.

8.Returns

8.1.Return Procedures.When required under this Agreement, Customer shall, within fourteen (14) Calendar Days of receiving pre-paid shipping label from TSI (“Return Window”), deliver the Equipment (excluding Consumables) to TSI’s designated carrier. Prepaid shipping labels will be provided by TSI via email or another mutually agreed-upon method. Customer is required to use such shipping labels for all returns made in accordance with this Section 8, unless otherwise agreed. Customer shall not be obligated to initiate a return under this Section 8 until receiving the pre-paid shipping labels.Customer must verify that the serial number of each Unit, if available, matches the serial number of the corresponding Unit provided by TSI. Any discrepancies in serial numbers must be promptly reported to TSI in writing before the return. The Equipment will be deemed returned by Customer when delivered to TSI’s designated carrier.

8.2.Return Conditions.Customer shall return the Equipment in the following conditions (collectively, the “Return Conditions”): (a) free of all Customer markings and in the packaging provided by TSI; (b) free of any liens and encumbrances; and (c) in the same condition and working order as when delivered to the Shipping Destination, except for: (i) ordinary wear and tear; and (ii) pre-existing conditions in Nonconforming Units or Defective Units that have affected the condition or functionality of the Equipment.

8.3.RestorationCharges.If the Equipment is returned within the Return Window but does not comply with the Return Conditions yet can be restored to compliance, TSI shall promptly notify Customer and provide reasonable documentation detailing the necessary repairs or refurbishments. Customer shall be responsible for the direct costs incurred by TSI to restore each affected Unit to compliance with the Return Conditions (“Restoration Charges”). Payment of any Restoration Charges by Customer shall not waive any of Customer’s obligations under this Agreement.

8.4.Replacement Charges.If the Equipment is not returned within the Return Window or is returned within the Return Window in a condition that does not comply with the Return Conditions and, in TSI’s reasonable judgment, cannot be restored to compliance, Customer shall be responsible for the fair market replacement value of each affected Unit (“Replacement Charges”). Payment of any Replacement Charges by Customer shall not: (a) waive any of Customer’s obligations under this Agreement; or (b) grant Customer the right to retain possession of the Equipment beyond the expiration or termination of this Agreement.

9.Software and Documentation

9.1.Additional Use Terms and Software Licensing. During the Subscription Term, TSI shall provide to Customer the Software specified in Schedule A as part of the HaaS Solution identified in the applicable Order. Certain Software included as part of the HaaS Solution may be subject to additional use terms or (end-user) software license agreements (“Additional Use Terms”), both from TSI or third parties. Such Additional Use Terms will be made available together with the Software, as applicable. Except where specified otherwise in the applicable Additional Use Terms, such Additional User Terms are hereby incorporated by reference into these Terms and form part of this Agreement. Failure to accept the applicable Additional Use Terms may result in restricted access to the corresponding Software, including limitations on feature availability and functionality.In the event of a conflict between these Terms and the terms of the applicable Additional Use Terms, such Additional Use Terms will prevail solely with respect to the applicable Software.

Software and Documentation provided under this Agreement are licensed, not sold, to Customer and its Authorized Users, and their use is subject to the license terms in Section 9.2 below, as well as any applicable Additional Use Terms.

9.2.Access and Use. Subject to Customer’s and its Authorized Users’ compliance with this Agreement, TSI hereby grants Customer the following rights during the Subscription Term:

• (a) For Software: a non-exclusive, non-transferable right to access and use the Software solely for Customer’s internal use by Authorized Users, in accordance with this Agreement and any applicable Additional Use Terms.
• (b) For Documentation: a non-exclusive, non-sublicensable, non-transferable license to use the Documentation solely for Customer’s internal business purposes in connection with its use of the HaaS Solution.

9.3.FitPro™ Ultra Fit Test Software. TSI’s FitPro™ Ultra Fit Test Software is included under the broader category of the Software that TSI provides to Customer during the Subscription Term as part of the HaaS Solution. Access to and use of the FitPro™ Ultra Fit Test Software are subject to the Additional Use Terms governing the FitPro™ Ultra Fit Test Software, which are incorporated into this Agreement by reference. To access and use the FitPro™ Ultra Fit Test Software and its features, Customer must acknowledge and accept the Additional Use Terms made available together with the FitPro™ Ultra Fit Test Software. Failure to accept the such Additional Use Terms will result in restricted access to the FitPro™ Ultra Fit Test Software, including limitations on feature availability and functionality. In the event of a conflict between these Terms and the Additional Use Terms governing the FitPro™ Ultra Fit Test Software, such Additional Use Terms will prevail solely with respect to the FitPro™ Ultra Fit Test Software.

10.Services

10.1.Scope.During the Subscription Term, TSI shall perform the Services specified in Schedule A as part of the HaaS Solution identified in the applicable Order. The Services do not include custom development or modifications to the Services. Performance of the Services is contingent upon Customer’s compliance with this Agreement. Customer acknowledges that failure to comply with this Agreement may limit TSI’s ability to provide the Services.

10.2.Annual Refresh Services.The Annual Refresh Services are an integral part of the Services provided under the HaaS Solution. These services ensure that the Equipment is properly maintained in accordance with TSI’s cleaning and recalibration schedule. When the Equipment is due for Annual Refresh Services:

• (a) Notice of Annual Refresh Services. TSI shall promptly notify Customer via email or another mutually agreed-upon method, identifying the Units due for Annual Refresh Services;
• (b) Replacement. TSI shall ship Replacement Units, along with any applicable items identified in Schedule A; and
• (c) Return. Customer shall return their then-current Units in accordance with the return procedures in Section 8.

10.3.Repair Services.The Repair Services are an integral part of the HaaS Solution, designed to minimize disruption to Customer’s operations. If, during the Subscription Term, Customer believes a Unit qualifies as a Defective Unit under the definition provided in Section 14.3:

• (a) Notice of Defect. Customer shall promptly notify TSI via email or another mutually agreed-upon method of the alleged Defect upon discovery or when it reasonably should have been discovered.
• (b) Remove Troubleshooting. Upon receiving notice, TSI will promptly evaluate the alleged Defect and work with Customer remotely to troubleshoot and attempt to resolve the issue. At TSI’s request, Customer shall provide reasonable assistance during this process .
• (c) Replacement. If TSI is unable to resolve the alleged Defect remotely or agrees, in its reasonable discretion, that the Unit may be Defective, subject to further inspection and testing, TSI shall ship a Replacement Unit along with any applicable items specified in Schedule A.
• (d) Return. Customer shall return the allegedly Defective Unit in accordance with the return procedures in Section 8.
• (e) Inspection and Responsibility. Upon receiving the allegedly Defective Unit, TSI will perform further inspection and testing. If TSI, upon reasonable inspection, determines that the returned Unit is a Defective Unit and such Defect was not caused or contributed to by any factors outlined in Section 14.2(b), Customer will be relieved of any obligation to pay any Restoration Charges or Replacement Charges under Sections 8.3 and 8.4 that are attributable to the Defect.

11.Third-Party Products

Third-Party Products are governed by the standard terms, licenses, services, warranties, indemnities, and support terms of their respective third-party manufacturers or suppliers (or any applicable direct agreement between Customer and such third party). Customer agrees to these terms and must contact the applicable third party directly for support or other issues related to the Third-Party Products. Accordingly, any warranty, damages, or indemnity claims against TSI related to Third-Party Products are expressly excluded. Unless otherwise specified in Customer’s agreement with the third-party manufacturer or supplier, Customer acknowledges that the right to use the Third-Party Products is limited to the Subscription Term and any extensions thereto, as provided under this Agreement.

12.Customer Responsibilities

12.1.General Responsibilities. Customer is responsible and liable for all uses of the HaaS Solution resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of its Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the HaaS Solution, and will cause Authorized Users to comply with such provisions. Customer agrees to provide reasonable cooperation to TSI to prevent the unauthorized use of or access to the HaaS Solution, and to promptly notify TSI in writing of any unauthorized use or access of which Customer becomes aware.

12.2.Required Updates and Maintenance. Customer must allow TSI to: (a) perform the Services under this Agreement; and (b) install, at TSI’s expense, any alterations, modifications, additions, or updates to any Unit necessary to: (i) ensure compliance with applicable Laws; and (ii) to address safety or operational concerns in TSI’s reasonable judgment.

12.3.Safety.Customer acknowledges that misuse or mishandling of any part of the HaaS Solution may result in physical harm and property damage. Customer accepts and assumes responsibility and related costs and expenses for appropriate handling and storage of the Units.

13.Use Restrictions

Customer shall not use any part of the HaaS Solution for any purpose except as expressly permitted in this Agreement and as specified in the Documentation. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Customer will not at any time, directly or indirectly, or permit its Authorized Users to, in whole or in part:

• (a) use or access the HaaS Solution except as permitted hereunder;
• (b) alter or remove any usage instructions or safety warnings on any Unit or Documentation;
• (c) install any software of any kind on any Unit that would interfere with the operation of the HaaS Solution;
• (d) place or use any Unit outside of its permissible operating parameters;
• (e) use or grant access to the HaaS Solution for the benefit of a third party, unless agreed to by TSI in signed writing;
• (f) rent, lease, loan or otherwise in any manner provide or distribute the HaaS Solution or any copy thereof to any third party, unless agreed to by TSI in signed writing;
• (g) gain unauthorized access to the HaaS Solution;
• (h) modify, decompile, reverse engineer, disassemble, remove, alter, circumvent, or otherwise tamper with the HaaS Solution or any security technology, software, or rights management information contained within or accessible by or through the HaaS Solution or in any software used to enable the HaaS Solution;
• (i) modify or remove any copyright, trademark or other proprietary rights notice on any software or other materials contained within or comprising the HaaS Solution (or any Unit for as long as it is used in connection with the rest of the HaaS Solution);
• (j) access or use the HaaS Solution for purposes of competitive analysis, the development, provision, or use of a competing software service or product or any other purpose that is to TSI’s detriment or commercial disadvantage;
• (k) access or use the HaaS Solution in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party, or that violates any applicable Laws;
• (l) access or use the HaaS Solution to submit or transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature or to send commercial solicitation or spam (whether commercial in nature or not);
• (m) disrupt the functioning of the HaaS Solution;
• (n) otherwise act in a manner that interferes with TSI’s operation of the HaaS Solution;
• (o) exploit the HaaS Solution in any unauthorized way whatsoever, including by trespass or burdening server or network capacity or the HaaS Solution infrastructure including transmitting files containing viruses, corrupted files, spyware, adware, or any other software or programs, or deploying “spiders,” “web-bots,” “screen-scrapers,” or “web crawlers” that may damage or adversely affect server or network capacity or software infrastructure;
• (p) prevent TSI from performing the Services;
• (q) misappropriate any data or information from the HaaS Solution; or
• (r) attempt, or encourage or assist any third party to attempt, any of the foregoing restrictions in this Section 13.

14.Representations and Warranties

14.1.Mutual Representations and Warranties. Each Party hereby represents and warrants to the other that: (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the applicable Laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; and (c) when executed, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.

14.2.Customer Representations and Warranties. Customer represents and warrants to TSI that its use of the HaaS Solution will not: (a) violate any applicable Laws; (b) infringe or misappropriate the rights of any third party, including intellectual property or privacy rights; or (c) result in any liability for TSI to a third party.

14.3.Limited Warranty.

• (a) TSI warrants that the Equipment, excluding the Software, rented hereunder, under normal use and service in accordance with the operator’s manual (version published as of the Effective Date) and the Annual Refresh Services, will be free from defects in workmanship and materials (“Defects,” with “Defective Unit” having a correlative meaning) during the Subscription Term (the “Limited Warranty”). This warranty period is inclusive of any statutory warranty.
• (b) The Limited Warranty is subject to the following exclusions and exceptions :
  • (i) TSI does not provide any warranty on finished goods manufactured by others or on any fuses, batteries or other Consumables. Only the original manufacturer’s warranty applies;
  • (ii) TSI warrants that the Equipment is properly calibrated at the time of shipment to the Shipping Destination. The Limited Warranty does not cover recalibration of Equipment outside the scope of Annual Refresh Services, as such services are provided separately and are not included under this warranty;
  • (iii) The Limited Warranty is VOID if the Equipment is opened by anyone other than a factory authorized service center with the one exception where requirements set forth in the operator’s manual (version published as of the Effective Date) allow an operator to replace Consumables or perform recommended cleaning;
  • (iv) The Limited Warranty is VOID if the Equipment has been misused, neglected, or subjected to accidental or intentional damage;
  • (v) The Limited Warranty is VOID if the Equipment has not been properly installed, maintained, or cleaned according to the requirements of the operator’s manual (version published as of the Effective Date). Unless expressly authorized in a separate written agreement by TSI, TSI provides no warranty and assumes no liability for Equipment that is incorporated into other products or equipment, or that is modified by any party other than TSI; and
  • (vi) The Limited Warranty is VOID if Customer does not return a Unit when required for the Annual Refresh Services and continues to use it beyond its intended replacement period. Such Unit will no longer be covered under the Limited Warranty, and Customer may be subject to additional fees or charges as specified in this Agreement. 

15.Termination

15.1.Termination of Agreement.In addition to any other express termination right set forth elsewhere in this Agreement:

• (a) TSI may terminate or suspend this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any Fees when due hereunder, and such failure continues more than forty-five (45) Calendar Days after TSI’s delivery of written notice thereof; or (ii) breaches any of its responsibilities or restrictions under Section 12 or Section 13;
• (b) TSI may terminate this Agreement for any reason by providing Customer with at least ninety (90) Calendar Days’ written notice;
• (c) Customer may terminate this Agreement for any reason by providing TSI with at least thirty (30) Calendar Days’ written notice;
• (d) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured sixty (60) Calendar Days after the non-breaching Party provides the breaching Party with written notice of such breach; and
• (e) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

15.2.Effect of Termination.Upon expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:

• (a) Customer shall return all Equipment, excluding Consumables, in accordance with the return procedures specified in Section 8;
• (b) all rights, licenses, consents, and authorizations granted by TSI to Customer and its Authorized Users with respect to the HaaS Solution will immediately terminate;
• (c) Customer shall immediately cease all use of the HaaS Solution;
• (d) if TSI terminates this Agreement pursuant to Section 15.1(a) or Section 15.1(d), or if Customer terminates this Agreement pursuant to Section 15.1(c), all Subscription Fees that would have become payable had this Agreement remained in effect until expiration of the Subscription Term (“Termination Fees”) shall become due and payable, together with all previously accrued but not yet paid Subscription Fees. Termination Fees shall be calculated as follows: (i) 100% of the outstanding Subscription Fees for the unfulfilled portion of the first year of the Subscription Term, if applicable; and (ii) 75% of the outstanding Subscription Fees for the unfulfilled portion of the second through fifth years of the Subscription Term. The Parties agree that Termination Fees serve as liquidated damages, not a penalty, and represents a reasonable estimate of the potential harm caused by such terminations, given the difficulty of accurately estimating actual damages.
• (e) if TSI terminates this Agreement pursuant to Section 15.1(b) or Section 7.6, Customer will be relieved of any obligation to pay any Subscription Fees attributable to the Subscription Term after the effective date of such termination.
• (f) if Customer terminates this Agreement pursuant to Section 15.1(d) or Section 7.6, Customer will be relieved of any obligation to pay any Subscription Fees attributable to the Subscription Term after the effective date of such termination.

16.Intellectual Property Rights

16.1.Ownership.All right, title, and interest in and to the HaaS Solution, including all Intellectual Property Rights therein, are and will remain with TSI and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Products. Customer has no right, license, or authorization with respect to any part of the HaaS Solution except as expressly set forth in this Agreement or the applicable third-party license, in each case subject to Section 13. All other rights in and to the HaaS Solution are expressly reserved by TSI.

16.2.Reservation of Rights.Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to the HaaS Solution or Third-Party Products, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to HaaS Solution are and will remain with TSI and the respective rights holders in the Third-Party Products.

17.Disclaimer

EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL PARTS OF THE HAAS SOLUTION, INCLUDING THIRD-PARTY PRODUCTS, ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TSI DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OF TRADE, STATUTE, OR OPERATION OF LAW. WITHOUT LIMITING THE FOREGOING, TSI MAKES NO WARRANTY THAT ANY PART OF THE HAAS SOLUTION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL: (A) MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS; (B) OPERATE WITHOUT INTERRUPTION; (C) ACHIEVE ANY INTENDED RESULT; (D) BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES; OR (E) BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE. FURTHERMORE, TSI MAKES NO EXPRESS OR IMPLIED WARRANTIES REGARDING THIRD-PARTY PRODUCTS, EVEN IF SUPPORT OR LICENSING FEES FOR SUCH PRODUCTS ARE INVOICED THROUGH TSI.

18.Limitations of Liability

IN NO EVENT SHALL EITHER PARTY, OR ITS SUBSIDIARIES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR INDIRECT OR PUNITIVE DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES), LOSS OF GOODWILL, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA, OR BUSINESS INTERRUPTION, IN CONNECTION WITH THE PERFORMANCE OF THIS AGREEMENT, EVEN IF SUCH PARTY OR ITS SUBSIDIARIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.

NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, IN NO EVENT WILL THE AGGREGATE LIABILITY OF TSI ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO TSI UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

19.Insurance

During the Subscription Term, Customer shall maintain insurance coverage for the Equipment with losses payable to TSI against fire, theft and other such risks as are appropriate and specified by TSI. Upon request, Customer shall provide TSI with a certificate of insurance evidencing compliance with this requirement.

20.Governing Law, Jurisdiction, and Venue

This Agreement shall be governed by and construed in accordance with the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule (whether of the State of Minnesota or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Minnesota. Any legal suit, action, or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted exclusively in the United States District Court for the District of Minnesota or the courts of the State of Minnesota, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding and waives any objection based on improper venue or forum non conveniens. Service of process, summons, notice, or other document by mail to such Party’s address set out herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.

21.Export Controls

Each Party acknowledges and agrees that any HaaS Solution provided under this Agreement is or may be subject to compliance with export control laws, regulations, or orders (collectively, “Export Control Laws”), including the International Traffic in Arms Regulations, Export Administration Regulations and regulations and orders administered by the Office of Foreign Assets Control. Each Party agrees to comply with all Export Control Laws.

22.Force Majeure

Neither Party shall be liable for any damage, loss, or expense suffered by the other Party due to any delay or nonperformance caused by events beyond the reasonable control of the affected Party (each, a “Force Majeure Event”). Force Majeure Events include, but are not limited to, war or armed conflict, including acts of foreign enemies, invasion, military hostilities, or extensive military mobilization; civil unrest such as riots, rebellions, revolutions, or acts of civil disobedience; acts of terrorism, sabotage, or piracy; public health crises, including pandemics, epidemics, quarantines, or other health-related restrictions; government actions, whether lawful or unlawful, including compliance with laws, orders, expropriation, requisition, or nationalization; natural disasters or acts of God, such as earthquakes, hurricanes, floods, or droughts; industrial disturbances, including explosions, fires, transport or telecommunications failures, or labor strikes; and supply chain disruptions resulting from shortages of critical materials or supplies outside the affected Party’s control.

23.Federal Government Orders

If any portion of the applicable Order is submitted in connection with a contract between Customer and a United States federal government agency, United States federal government contractor or subcontractor, or any ultimate end user otherwise in connection with a United States federal government contract (a “U.S. Federal Government Contract”) Customer understands that TSI can commit only to the requirements in the flow-down clauses listed in the TSI Incorporated Acceptable US Government Contract Clauses at https://tsi.com/discover-tsi/our-policies/ effective as of the date of the Order. Any different or additional terms of any such U.S. Federal Government Contract shall not be binding on TSI as a subcontractor or otherwise unless agreed to by TSI in signed writing. Customer is solely responsible for ensuring compliance with its U.S. Federal Government Contracts .

24.Miscellaneous

24.1.Relationship of the Parties.The Parties are independent contractors. Nothing in this Agreement shall be construed to create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.

24.2.Notices.All notices, requests, consents, claims, demands, waivers, and other communications hereunder must be in writing and addressed to the Parties at the addresses set forth in this Agreement (or to such other address that may be designated by the Party giving notice from time to time in accordance with this Section). All notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Notwithstanding the foregoing, the Parties may communicate via other mutually agreed methods or email, without the need for receipt confirmation, for day-to-day correspondence and routine operational matters.

24.3.Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

24.4.Assignment. Neither Party may assign its rights or delegate its obligations under this Agreement, including all applicable Orders, without the prior written consent of the other Party. Any attempted assignment or delegation in violation of this Section 24.4 shall be null and void. An assignment or delegation does not relieve the assigning or delegating Party of its obligations under this Agreement. This Agreement is binding upon and for the sole benefit of the Parties and their respective successors and permitted assigns, and no other person or entity shall have any legal or equitable rights or remedies under this Agreement.

24.5.Entire Agreement. This Agreement constitutes the entire agreement between the Parties regarding its subject matter and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, whether written or oral, relating to the same subject matter. In the event of any conflict or inconsistency among these Terms, the applicable Order, Schedule A, any applicable Additional Use Terms, or any other attachments incorporated into these Terms by reference, the following order of precedence shall apply: (a) Additional User Terms, but only with respect to the applicable Software to which they apply; (b) these Terms, excluding Schedule A; (c) Schedule A; (d) any other attachments incorporated into these Terms by reference; and (e) the Order.

24.6.Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (d) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, schedules, and attachments mean the sections of, and schedules and attachments attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The schedules and attachments referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.

24.7.Amendment, Modification, and Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement: (a) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (b) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

24.8.Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach of any of its obligations under Section 12 or Section 13 would cause TSI irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, TSI will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

24.9.Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

Schedule A: HaaS Solutions and Included Offerings

Last Updated:January 21, 2025

Capitalized terms in this Schedule A: HaaS Solutions and Included Offerings have the meanings assigned in Section 2 of the Terms or in the section where they are first defined. This Schedule A provides a comprehensive overview of TSI’s HaaS Solutions, specifying the Hardware, Accessories, Consumables, Software, and Services included with each solution.

The provisions in this Schedule A, including the details in Table 1: Offering Details below, are specific to each HaaS Solution and apply solely to the HaaS Solution(s) identified in the applicable Order. ALL SUCH PROVISIONS ARE GOVERNED BY AND SUBJECT TO THE TERMS, INCLUDING ANY APPLICABLE LIMITATIONS, EXCLUSIONS, AND PROCESSES OUTLINED IN THE TERMS.

Table 1: Offering Details

HaaS Solution:	PortaCount™ Respirator Fit Tester 8048 Hardware as a Service Offering	PortaCount™ Respirator Fit Tester 8040 Hardware as a Service Offering
Hardware:	(1) PortaCount™ Fit Tester Model 8048 (1) Particle Generator Model 8026	(1) PortaCount™ Fit Tester Model 8040
Accessories:	(1) USB cable (1) Carrying case (1) AC adapter (1) AC power supply w/global plug adapters (1) Storage cap (1) Standard accessory kit: (1) Twin tube assembly (1) 1/8 to 1/4 tube adapter (1) 1/8 to 3/16 tube adapter (2) Zero check filters (2) Alcohol wicks (1) Alcohol fill capsule (1) Alcohol cartridge (1) PortaPunch™ Probe Insertion Tool	(1) USB cable (1) Carrying case (1) AC adapter (1) AC power supply w/global plug adapters (1) Storage cap (1) Standard accessory kit: (1) Twin tube assembly (1) 1/8 to 1/4 tube adapter (1) 1/8 to 3/16 tube adapter (2) Zero check filters (2) Alcohol wicks (1) Alcohol fill capsule (1) Alcohol cartridge
Consumables:	(1) Neck strap (16) 30-ml bottles of isopropyl alcohol (100) Sampling probes (100) Push nuts (1) 100mg bottle of salt tablets	(1) Neck strap (16) 30-ml bottles of isopropyl alcohol
Software:	FitPro™ Ultra Fit Test Software Access to software and firmware updates	FitPro™ Ultra Fit Test Software Access to software and firmware updates
Services:	Technical Support Technical support from TSI via phone or email, offering assistance with troubleshooting, setup, and general inquiries to ensure seamless operation and Customer satisfaction. Repair Services Unlimited repair and replacement coverage for Defective Units (defects in materials and workmanship), ensuring minimal disruption to Customer’s operations. If a Defect cannot be resolved remotely, TSI provides Customer with the following items in exchange for Defective Units: Replacement Units; and Calibration certificates (as necessary). Annual Refresh Services Comprehensive maintenance in accordance with TSI’s scheduled cleaning and recalibration schedule, ensuring optimal performance. TSI notifies Customer when any Units are due for cleaning and recalibration and provides the following items in exchange for Customer’s then-current Units: Replacement Units; Calibration certificates (as necessary); and A resupply of Consumables. TSI performs the following scheduled cleaning and recalibration procedures (as needed/if applicable) before Replacement Units are provided to Customer: Inspection and cleaning; Replacement of Consumables, as necessary; Leak testing; Calibration of flow rates, voltages, and temperature control; Optical alignment; Span calibration of gas sensors; Zero check; Update software and firmware, as necessary; and Final electrical checkout and performance verification. Shipping and Returns TSI covers the cost of any authorized shipments and returns.