This Fort Robotics Customer Agreement (“Agreement”), is between Fort Robotics, Inc. (“Manufacturer”), and the organization agreeing to these terms (“Customer”).
1.1 “Customer Product(s)” means the products specified in the applicable Order Acknowledgement (as defined below), which are used by Customer for its internal business purposes and are not sold, distributed, leased or licensed to any third party (including, without limitation, as part of Customer’s services) in combination with a Product
1.2 “Effective Date” means the date of last signature in the applicable Order Acknowledgement or, if earlier, the start of the license term specified in the applicable Order Acknowledgement.
1.3 “End User” means an employee or contractor of Customer who is given access to the Fort Platform.
1.4 “Fort Platform” means the Manufacturer software (in object code form) listed on the applicable Order Acknowledgement , including any modifications or updates thereto made available by Manufacturer pursuant to this Agreement.
1.5 “Intellectual Property Rights” means patent rights, copyright rights (including, but not limited to, rights in audiovisual works and moral rights), trade secret rights, and any other intellectual property rights recognized by the law of each applicable jurisdiction.
1.6 “Marks” means Manufacturer’s trademarks, tradenames, service marks, and/or service names whether or not registered.
1.7 “Product(s)” means the Manufacturer products listed on the applicable Order Acknowledgement, including but not limited to any modifications or additions provided to Customer by Manufacturer.
2.1 Orders. The Agreement governs supply of Product by or on behalf of Manufacturer to Customer, and access to, and use of, the Fort Platform subscribed to by Customer pursuant to a purchase order or order acknowledgement form executed by both Parties (upon execution, each a “Order Acknowledgement”). All Order Acknowledgements will reference this Agreement and shall be governed by the terms and conditions hereof.
2.2 Restrictions. Customer will not and will ensure its End Users will not: (i) disassemble, decompile, or reverse engineer any Products or the Fort Platform, or attempt or assist anyone else to do so (unless this restriction is prohibited by law); (ii) copy or otherwise reproduce, distribute, sell, resell, lease or make available, grant access to (alone or in combination with other products, including as part of Customer Products) any Products, in whole or in part; (iii) modify the Product or Fort Platform in any manner, except as it may be expressly directed by Manufacturer in writing; or (iv) use, sell, resell, lease, distribute, make available, grant access to or otherwise dispose of the Fort Platform (alone or in combination with other products, including as part of Customer Products), except as expressly permitted under this Agreement. In addition, Customer shall only use the Products and the Fort Platform in a safe manner and in accordance all safety instructions provided by Manufacturer. Manufacturer reserves all right, title and interest in and to Fort Platform not expressly granted by Manufacturer under this Agreement. Customer’s rights in the Products will be limited to those expressly granted in this Agreement.
2.3 Fort Platform License.
2.3.1 Subject to the terms and conditions of this Agreement, Manufacturer grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, license during the license term specified in the applicable Order Acknowledgement to access and use the Fort Platform solely for integrating the Product and Fort Platform with the Customer Product for Customer’s own internal use. Customer may make only as many internal use copies of the distributable components (as designated by Manufacturer) of the Fort Platform as reasonably necessary to use the Fort Platform as permitted under this license.
2.3.2 Customer shall and ensure that the End Users shall upon the earlier of (i) expiration or termination of this Agreement, for any reason, or (ii) expiration of the license term specified in the applicable Order Acknowledgement, cease to have the right to use the Fort Platform as part of the Customer Products or otherwise.
2.4 End User Agreement. Manufacturer may require End Users to agree to agree to Manufacturer’s standard end user terms for the Fort Platform, as may be implemented by Manufacturer from time to time. Customer shall ensure that each End User shall adhere to the provisions of Section 6.
2.5 Trademarks. Manufacturer will have the exclusive right to own, use, hold, apply for registration for, and register the Marks during the term of, and after the expiration or termination of, this Agreement; Customer will neither take nor authorize any activity inconsistent with such exclusive right.
3.1 Orders. Customer will order Products by Order Acknowledgements. Any terms and conditions of any such Order Acknowledgement that are in addition to or inconsistent with the terms and conditions of this Agreement will be deemed stricken from such Order Acknowledgement, notwithstanding any acknowledgment or acceptance of such order, unless the Order Acknowledgement specifically references the provision of this Agreement that Parties intend to modify and explicitly states the Parties’ intention to amend it.
3.2 Acceptance. All orders for Products or the Fort Platform are subject to acceptance in writing of the applicable Order Acknowledgement by Manufacturer and no Order Acknowledgement shall be considered binding until the earlier of such acceptance or shipment, and, in the case of acceptance by shipment, only as to the portion of the order actually shipped. Manufacturer will make commercially reasonable efforts to ship the Products to Customer in accordance with delivery schedules specified in the Order Acknowledgement as accepted by Manufacturer.
3.3 Shipment. Orders for Products will be shipped FCA Manufacturer’s point of shipment. Shipments will be made to Customer’s identified warehouse facilities or freight forwarder, subject to approval in writing by Manufacturer in advance of shipment. Unless otherwise specified in the applicable Order Acknowledgement, Manufacturer will select the mode of shipment and the carrier. Customer will be responsible for and pay all packing, shipping, freight and insurance charges, which charges Manufacturer may require Customer to pay in advance. Title (except title to the Fort Platform and any other software contained in the Products, which shall remain with Manufacturer and its suppliers) and all risk of loss of or damage to Products will pass to Customer upon delivery by Manufacturer to the carrier, freight forwarder or Customer, whichever first occurs.
3.4 Cancellation. Manufacturer reserves the right to cancel any orders placed by Customer and accepted by Manufacturer as set forth above, or to refuse or delay shipment thereof, if Customer: (i) fails to make any payment as provided in this Agreement or under the terms of payment set forth in any invoice or otherwise agreed to by Manufacturer and Customer; (ii) fails to meet reasonable credit or financial requirements established by Manufacturer, including any limitations on allowable credit; or (iii) otherwise fails to comply with the terms and conditions of this Agreement. No such cancellation, refusal or delay will be deemed a termination (unless Manufacturer so advises Customer) or breach of this Agreement by Manufacturer.
4.1 Payments for Products. Customer will pay Manufacturer the prices for the Products and the right to access and use the Fort Platform in connection with such Products as set forth in the applicable Order Acknowledgement. Such prices are stated in United States dollars. All shipping or other transportation charges for delivery of the Products to Customer, including insurance and special packaging, will also be paid by Customer.
4.2 Payments for Maintenance, Support, Updates, and Enhancements. To the extent that Customer elects to receive maintenance and support services and updates and enhancements for the Products from Manufacturer under Section 5.2, Customer will pay Manufacturer the nonrefundable amounts specified in the applicable Order Acknowledgement for such services.
4.3 Taxes. All amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other taxes and duties. Customer will pay all taxes and duties assessed in connection with this Agreement and its performance by any authority within or outside of the U.S., except for taxes payable on Manufacturer’s net income. Manufacturer will be promptly reimbursed by Customer for any and all taxes or duties that Manufacturer may be required to pay in connection with this Agreement or its performance.
4.4 Payment Terms. Unless otherwise agreed in the applicable Order Acknowledgement, all payments shall be due thirty (30) days from the date of Manufacturer’s invoice. Payments will be by certified check or wire transfer to a bank account designated by Manufacturer the amount of the aggregate prices of the Products ordered (plus any applicable taxes, shipping and other charges).
4.5 Credit Terms. Manufacturer reserves the right, upon written notice to Customer, to declare all sums immediately due and payable in the event of a breach by Customer of any of its obligations to Manufacturer, including the failure of Customer to comply with credit terms. Furthermore, Manufacturer reserves the right at all times either generally or with respect to any specific order by Customer to vary, change or limit the amount or duration of credit to be allowed to Customer. Customer agrees to pay for Products as invoiced.
4.6 Interest. Interest shall accrue on any delinquent amounts owed by Customer for Products at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable usury law.
4.7 No Setoff. Customer will not setoff or offset against Manufacturer’s invoices amounts that Customer claims are due to it. Customer will bring any claims or causes of action it may have in a separate action and waives any right it may have to offset, setoff or withhold payment for Products delivered by Manufacturer
5.1 Subject to receipt by Manufacturer of payments as specified in Section 4.2, during the Term of this Agreement, Manufacturer will be responsible for providing the following support to Customer: (i) installing the Products as needed; (ii) training End Users to use the Products and the Fort Platform as intended; (iii) providing all direct first level technical support to End Users, including but not limited to diagnosing problems and using its reasonable efforts to provide solutions; and (iv) providing Customer with error corrections, updates, and enhancements to the Products and Fort Platform in accordance with Manufacturer’s then-current standard support and maintenance guidelines for the level of support purchased by Customer as set forth in the applicable Order Acknowledgement (on a Product-by-Product basis ).
6.1 Confidential Information. “Confidential Information” means: (a) the Products; (b) any business or technical information of Manufacturer or Customer, including but not limited to any information relating to Manufacturer’s or Customer’s product plans, designs, costs, finances, marketing plans, business opportunities, personnel, research, development or know-how; and (c) the terms and conditions of this Agreement, including the applicable Order Acknowledgement.
6.2 Exceptions. Confidential Information shall not include information that: (a) is in or enters the public domain without breach of this Agreement through no fault of the receiving party; (b) the receiving party was demonstrably in possession of prior to first receiving it from the disclosing party; (c) the receiving party can demonstrate was developed by the receiving party independently and without use of or reference to the disclosing party’s Confidential Information; or (d) the receiving party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation.
6.3 Obligations. Each party will maintain the Confidential Information of the other party in strict confidence and will exercise due care with respect to the handling and protection of such Confidential Information, consistent with its own policies concerning protection of its own Confidential Information of like importance. Each party will use the Confidential Information of the other party only as expressly permitted herein, and will disclose such Confidential Information only to its employees and consultants as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein executed in writing by such employees and consultants). However, each party may disclose Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the receiving party gives reasonable notice to the other party to contest such order or requirement. Any such disclosure by the receiving party of the Confidential Information of the disclosing party, will, in no way, be deemed to change, affect or diminish the confidential and proprietary status of such Confidential Information.
6.4 Injunctive Relief. Each party acknowledges that improper use or disclosure of the Confidential Information of the other party would cause substantial harm to the other party that could not be remedied by the payment of damages alone. Accordingly, each party will be entitled to preliminary and permanent injunctive relief and other equitable relief for any breach of this Section 6.
7.1 Power and Authority. Manufacturer warrants to Customer that it has sufficient right and authority to grant to Customer all licenses and rights that Manufacturer grants under this Agreement.
7.2 Product Warranty. Manufacturer warrants to Customer that the Products will be free from material defects for each Product, for as long as the license to Fort Platform granted under Section 2.3.1 with respect to such Product continues. In the event the Products fail to conform to such warranty, as Customer’s sole and exclusive remedy for such failure Manufacturer will, at its option and without charge to Customer, repair or replace the Products provided the nonconforming item is returned to Manufacturer in accordance with Manufacturer’s RMA procedures within the warranty period. The foregoing warranty shall not apply to any nonconformities caused by Customer’s modification, alteration, improper handling or misuse of the Product.
7.3 Customer Product. Customer acknowledges and agrees that Customer, through its own analysis and testing, is solely responsible for making the final selection of the system and components and assuring that all performance, endurance, maintenance, safety and warning requirements of the application are met in the Customer Products. Customer represents and warrants that it will analyze all aspects of the application, follow applicable industry standards, and follow the information concerning the Products and in any other materials provided from Manufacturer.
7.4 Disclaimer of Other Warranties. THE WARRANTIES IN THIS SECTION ARE IN LIEU OF, AND MANUFACTURER EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
8.1 Indemnity By Customer. Subject to the terms of Section 8.2, Customer agrees to indemnify Manufacturer against any third party claims against Manufacturer for loss, damage, liability, or expense (including but not limited to attorneys’ fees) arising out of any acts or omissions of Customer in connection with their activities under this Agreement.
8.2 Indemnity by Manufacturer.
(a) Duty to Indemnify.
(i) Manufacturer will indemnify and hold Customer harmless from and against, and will defend or settle at Manufacturer’s own expense, any action or other proceeding brought against Customer to the extent that it is based on a claim that the Products or Fort Platform infringe any U.S. copyright or U.S. patent issued as of the Effective Date, or that the Products or Fort Platform incorporate any misappropriated trade secrets.
(ii) Manufacturer will pay any and all costs, damages, and expenses (including but not limited to reasonable attorneys’ fees) finally awarded against Customer in any such action or proceeding attributable to any such claim.
(iii) Manufacturer will have no obligation under this Section as to any action, proceeding, or claim unless: (A) Manufacturer is notified of it promptly; (B) Manufacturer has sole control of its defense and settlement; and (C) Customer provides Manufacturer with reasonable assistance in its defense and settlement.
(b) Sole Remedy. THE FOREGOING ARE MANUFACTURER’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH THE PRODUCTS OR SOFTWARE.
(c) Exclusions. Manufacturer will have no obligations under this Section 8.2 with respect to infringement or misappropriation arising from (i) modifications to the Products or Fort Platform that were not authorized by Manufacturer, (ii) Product specifications requested by Customer, or (iii) the use of the Products or Fort Platform in combination with products not provided by Manufacturer.
9.1 Total Liability. MANUFACTURER’S TOTAL LIABILITY TO CUSTOMER UNDER THIS AGREEMENT WILL BE LIMITED TO THE PAYMENTS RECEIVED FROM CUSTOMER UNDER THIS AGREEMENT.
9.2 Exclusion of Damages. IN NO EVENT WILL MANUFACTURER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF USE, DATA, BUSINESS OR PROFITS, OR FOR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS, SOFTWARE OR SERVICES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING PRODUCT LIABILITY), EVEN IF MANUFACTURER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 Exceptions. The limitations of liability set forth herein shall not apply to (i) claims of breaches of confidentiality under Section 6; (ii) indemnification obligations set forth under Section 8; or (ii) claims of gross negligence or willful misconduct.
9.4 Failure of Essential Purpose. The parties have agreed that the limitations specified in this Section 9 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
Each party agrees to comply with all applicable laws, rules, and regulations in connection with its activities under this Agreement. Without limiting the foregoing, OEM acknowledges that all Products and Fort Platform, including documentation and other technical data, are subject to export controls imposed by the U.S. Export Administration Act of 1979, as amended (the “Act”), and the regulations promulgated thereunder. OEM will not export or reexport (directly or indirectly) any Products, Fort Platform or documentation or other technical data therefor without complying with the Act and the regulations thereunder.
12.1 Assignment. Customer may not assign this Agreement, in whole or in part, without Manufacturer’s written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Any attempt to assign this Agreement without such consent will be null and void.
12.2 Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, excluding its body of law controlling conflict of laws. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Delaware and the parties irrevocably consent to the personal jurisdiction and venue therein.
12.3 Severability. If any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in force.
12.4 Force Majeure. Except for payments due under this Agreement, neither party will be responsible for any failure to perform due to causes beyond its reasonable control (each a “Force Majeure”), including, but not limited to, acts of God, war, riot, embargoes, acts of civil or military authorities, denial of or delays in processing of export license applications, fire, floods, earthquakes, accidents, strikes, pandemics, epidemics, public health emergencies, or fuel crises, provided that such party gives prompt written notice thereof to the other party. The time for performance will be extended for a period equal to the duration of the Force Majeure.
12.5 Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; or (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid. All such notices will be sent to the addresses set forth above or to such other address as may be specified by either party to the other party in accordance with this Section.
12.6 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
12.7 Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
12.8 Entire Agreement. This Agreement, together with the applicable Order Acknowledgements, the terms of which are incorporated herein by reference, constitutes the complete and exclusive agreement of the parties with respect to its subject matter and supersedes all prior understandings and agreements, whether written or oral, with respect to its subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties hereto.
