This OEM Supply and License Agreement (“Agreement”), is entered into between
Fort Robotics, Inc. (“Manufacturer”), and the organization agreeing to these terms (“OEM”).
1.1 “Access Credentials" means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual's identity and authorization to access and use of the Fort Platform or the Fort Manager.
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 a direct or indirect customer of OEM who is purchasing, leasing or licensing an OEM Product for its own use.
1.4 “Fort Manager” means the Manufacturer hosted software listed on the applicable Order Acknowledgement, including any modifications or updates thereto, to which OEM or an End User is provided access by Manufacturer pursuant to this Agreement.
1.5 “Fort Platform” means the Manufacturer software (in object code form) listed on the applicable Order Acknowledgement, including any modifications or updates thereto made available to the OEM or an End User by Manufacturer pursuant to this Agreement.
1.6 “Harmful Code" means any software, technology, or other means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner access or use of the Fort Manager or the Fort Platform.
1.7 “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.
1.8 “Marks” means Manufacturer’s trademarks, tradenames, service marks, and/or service names specified in the applicable Order Acknowledgement.
1.9 “Material Defect(s)” means a material (a) reproducible error in a Product, (b) failure of a Product to conform to Manufacturer’s specifications or documentation a product, or (c) a failure of a Product to operate in conformance with such specifications or documentation.
1.10 “OEM Product(s)” means the products specified in the applicable Order Acknowledgement, which are distributed, leased or licensed by OEM to its customers (including, without limitation, as part of OEM’s services) in combination with a Product.
1.11 “Product(s)” means the Manufacturer hardware products or physical devices listed on the applicable Order Acknowledgement, including but not limited to any modifications or additions provided to OEM by Manufacturer.
2.1 Orders. The Agreement governs (a) the supply of Product by or on behalf of Manufacturer to OEM, and (b) access to, and use of, the Fort Platform and/or the Fort Manager, subscribed to by OEM on behalf itself or its End Users pursuant to a purchase order or order acknowledgement form executed by both Parties (upon execution, each a “Order Acknowledgement”). All Order Acknowledgements shall be governed by the terms and conditions hereof.
2.2 Rolling Forecast. Upon entering into an initial Order Acknowledgement, OEM shall provide Manufacturer with a twelve-month rolling forecast of quantity requirements of each Product in writing (each, a “Forecast”). Forecasts shall be updated by OEM on a monthly basis. OEM and Manufacturer acknowledge and agree that: (a) each such Forecast is a good faith estimate of its anticipated orders for Products based on information then available to OEM; and (b) a Forecast does not constitute a binding order or commitment of any kind by OEM to purchase Products or by Manufacturer to supply Products.
2.3 No Standalone Sales. In the exercise of OEM’s rights under this Agreement, OEM will always market and distribute the Products in combination with OEM Products and not resell the Products or provide access to the Fort Platform and/or the Fort Manager separately from the OEM Products or in connection with any products other than the OEM Products.
2.4 Restrictions and Reservation of Rights.
2.4.1 Restrictions. OEM will not, directly or indirectly, and will ensure that End Users will not, directly or indirectly: (i) disassemble, decompile, or reverse engineer any Products, Fort Manager, or the Fort Platform, in whole or in part (including, with respect to the Fort Manager or the Fort Platform, attempt to derive or gain access to the source code thereof), 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 OEM Products) any Products, Fort Manager, or the Fort Platform, in whole or in part, other than as expressly permitted under this Agreement; or (iii) modify or create derivative works of any Product, Fort Manager, or the Fort Platform, in any manner, except as it may be expressly directed by Manufacturer in writing; (iv) use, sell, resell, lease, distribute make available, grant access to, or otherwise dispose of the Fort Manager or the Fort Platform (alone or in combination with other products, including as part of OEM Products), except as expressly permitted under this Agreement; (v) bypass or breach any safety or security device or protection used by the Products, the Fort Manager, or the Fort Platform, or allow or permit the access or use of the same by any person other than an End User; (vi) input, upload, transmit, or otherwise provide to or through the Fort Manager or the Fort Platform, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code; (vii) remove, delete, alter, or obscure any trademarks, warranties, or disclaimers, or any Intellectual Property Rights notices from the Products, Fort Manager, or the Fort Platform; (viii) access or use the Products, Fort Manager, or the Fort Platform, 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 law or regulation; or (ix) access or use the Products, Fort Manager, or the Fort Platform for purposes of competitive analysis, the development, provision, or use of competing software or product or any other purpose that is to Manufacturer’s detriment or commercial disadvantage. In addition, OEM shall only use the Products, the Fort Manager, and the Fort Platform in a safe manner and in accordance with applicable law and regulations and all safety instructions provided by Manufacturer.
2.4.2 Reservation of Rights. Nothing in this Agreement or any Order Acknowledgment grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Products, the Fort Manager, or the Fort Platform, whether expressly, by implication, estoppel, or otherwise. Manufacturer reserves all right, title and interest in and to its Intellectual Property Rights, the Fort Manager, and the Fort Platform not expressly granted by Manufacturer under this Agreement, including the right, in its sole discretion, to make any changes to the Products, the Fort Manager, or the Fort Platform that Manufacturer deems necessary or useful to: (i) maintain or enhance: (A) the quality of or access to the Products, the Fort Manager, or the Fort Platform; (B) the competitive strength of or market for Manufacturer’s goods and services; or (C) the cost efficiency or performance of the Products, the Fort Manager, or the Fort Platform; or (ii) to comply with applicable laws or regulations. Furthermore, Manufacturer retains sole control over the operation, provision, maintenance, and management of the Fort Manager and the Fort Platform. OEM’s rights in the Products will be limited to those expressly granted in this Agreement.
2.4.3 OEM Responsibilities. OEM has and will retain sole responsibility for: (i) all information, instructions, and materials provided by or on behalf of OEM or any End User in connection with OEM or the End User’s use of the Products, the Fort Manager, and/or the Fort Platform; (ii) OEM’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by OEM or through the use of third-party services ("OEM Systems"); (iii) the security and use of OEM;s and its End Users' Access Credentials; and (iv) all access to and use of the Products, the Fort Manager and/or the Fort Platform directly or indirectly by or through the OEM Systems or its or its End Users' Access Credentials, with or without OEM’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. OEM shall, and shall cause End Users to, employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to securely administer the distribution and use of all OEM or End User Access Credentials and/or protect against any unauthorized access to or use of the Fort Manager and/or the Fort Platform.
2.5 Software Licenses.
2.5.1 Limited License to Fort Manager. Subject to the terms and conditions of this Agreement, if the Fort Manager is specified in an Order Acknowledgement, Manufacturer grants OEM a limited, non-exclusive, non-transferable, non-sublicensable, license during the license term specified in the applicable Order Acknowledgement to access and use, and to permit End Users to access and use, the Fort Manager, solely in connection OEM’s permitted use of the Products, the Fort Manager, and/or the Fort Platform under applicable Order Acknowledgment(s) for the Products, the Fort Manager, and/or the Fort Platform. OEM shall ensure that OEM and each permitted End User shall only access the Fort Manager through the use of valid Access Credentials for such End User using computers that are set up, maintained, and operated in good repair, including, without limitation, through the use of industry standard antivirus software and the timely application of updates to such computers, their operating systems, and/or software applications. OEM 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, ensure that all Access Credentials for the Fort Manager are revoked and that the End Users cease to have the right to access or use the Fort Manager.
2.5.2 Limited License to the Fort Platform. Subject to the terms and conditions of this Agreement, if the Fort Platform is specified in an Order Acknowledgement, Manufacturer grants OEM a limited, non-exclusive license during the license term specified in the applicable Order Acknowledgement to (A) access and use the Fort Platform solely for the following purposes: (i) integrating the Product and Fort Platform with the OEM Product; (ii) demonstrating and marketing the OEM Product to potential End Users; and (iii) providing training and maintenance and support services to End Users; and (B) distribute (the distributable components designed by Manufacturer only) and sublicense the Fort Platform as part of the OEM Product to End Users. OEM 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. Manufacturer will deliver a master copy of the distributable components of the Fort Platform to OEM following execution of this Agreement by both parties.
2.5.3 Effect of Expiration or Termination on Fort Manager and Fort Platform Access. OEM agrees and acknowledges that upon the earlier of the (i) expiration or termination of this Agreement, for any reason, or (ii) expiration of the license term specified in the applicable Order Acknowledgement, OEM and End Users will cease to have any right or license to use or access the Fort Manager and/or the Fort Platform as part of the OEM Products unless OEM or the End User purchases a separate license from Manufacturer for each applicable OEM Product in accordance with Manufacturer’s standard license terms then in effect.
2.6 Customer Agreement. OEM may not make available or distribute the Product and/or grant access to the Fort Manager or the Fort Platform to any End User unless such End User is subject to a written end user license agreement or other agreement (a “EULA”) with OEM that protects Manufacturer and its proprietary rights in the Fort Manager and/or the Fort Platform to at least the same degree as the terms and conditions of this Agreement. Without limiting the foregoing, the EULA must, at a minimum, (i) name Manufacturer as an express third-party beneficiary under the EULA, with a right to enforce the terms of the EULA against the End User; (ii) include prohibitions on the End User consistent with Section 2.4.1; (iii) make no representations or warranties on behalf of Manufacturer; (iv) not grant any rights to such End User in the Fort Manager and/or the Fort Platform beyond the scope of this Agreement; (v) contain provisions that protect Manufacturer’s Confidential Information in a manner that is consistent, in scope and extent, with the provisions of Section 7; and (vi) contain provisions that are consistent with Section 2.5.3. OEM will promptly provide Manufacturer with reasonable access to such EULAs following Manufacturer’s request. Notwithstanding the foregoing, Manufacturer may require End Users to agree to agree to Manufacturer’s standard end user terms for the Fort Manager and/or the Fort Platform, as may be implemented by Manufacturer from time to time.
3.1 Demonstrations. OEM will be responsible for demonstrations and benchmarks of Products, the Fort Manager, and/or the Fort Platform to, and evaluations by, OEM’s prospective customers. Assistance by Manufacturer in any demonstrations or benchmarks will be at Manufacturer’s discretion.
3.2 Materials. If any advertisement or other marketing material used by OEM makes any statement as to the technical features or capabilities of the Products, the Fort Manager, and/or the Fort Platform beyond the information provided to OEM by Manufacturer, OEM will first obtain the written approval of Manufacturer prior to publishing such advertisement or material.
3.3 Trademarks. Subject to the terms and conditions of this Agreement, Manufacturer grants OEM a non-exclusive, non-transferable license for the license term specified in the applicable Order Acknowledgement to use the Marks in OEM’s marketing of the Products, the Fort Manager, and/or the Fort Platform, provided that such use is in accordance with Manufacturer’s trademark usage guidelines then in effect. Such use must reference the Marks as being owned by Manufacturer. Nothing in this Agreement grants OEM ownership or any rights in or to use the Marks, except in accordance with this license. The license granted to OEM will terminate upon any termination or expiration of this Agreement. Upon such termination or expiration, OEM will no longer make any use of any Marks. 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; OEM will neither take nor authorize any activity inconsistent with such exclusive right.
4.1 Orders. OEM will order Products by Order Acknowledgements. The terms of this Agreement supersede all terms and conditions contained in any other documentation issued by either party related to the subject matter of this Agreement and expressly exclude Customer’s terms and conditions contained in any invoice, purchase order or other document issued by Customer or contained on Customer’s website. Any terms and conditions of any 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 Acknowledgement[, 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]. OEM is, and will remain, entirely free to determine its End User prices and fees in its own discretion.
4.2. Acceptance. All orders for Products, the Fort Manager, and/or the Fort Platform, are subject to acceptance in writing of the applicable Order Acknowledgement by Manufacturer and shall not be considered binding until the earlier of such acceptance or shipment of Products, and, in the case of acceptance by shipment of Products, only as to the portion of the order actually shipped. Manufacturer will make commercially reasonable efforts to ship the Products to OEM in accordance with delivery schedules specified in the Order Acknowledgement as accepted by Manufacturer.
4.3 Shipment. Orders for Products will be shipped FCA Manufacturer’s point of shipment (Incoterms 2020), which point of shipment will be as specified in the applicable Order Acknowledgement or as otherwise specified in writing by Manufacturer. Shipments will be made to OEM’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 Acknowledgment, Manufacturer will use the mode of shipment and the carrier specified by the OEM, or will select a suitable mode of shipment and/or carrier if the OEM has not specified them. OEM will be responsible for and pay all packing, shipping, freight, or other transportation charges, and insurance charges for delivery of the Products to OEM, which charges Manufacturer may require OEM to pay in advance. All risk of loss of or damage to Products will pass to OEM upon delivery by Manufacturer to the carrier, freight forwarder or OEM, whichever first occurs. Title (except title to the Fort Platform, and any other software contained in the Products, which shall remain with Manufacturer and its suppliers) will pass to Customer once the Products have been paid for in full by the Customer.
4.4 Cancellation. Manufacturer reserves the right to cancel any orders placed by OEM and accepted by Manufacturer as set forth above, or to refuse or delay shipment thereof, if OEM: (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 OEM; (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 OEM) or breach of this Agreement by Manufacturer.
4.5 Suspension or Termination of Software Licenses. Manufacturer may, directly or indirectly, suspend, terminate, or otherwise deny OEM’s, any End User's, or any other person's access to or use of all or any part of the Fort Manager or the Fort Platform, without incurring any resulting obligation or liability, if: (i) Manufacturer receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Manufacturer to do so; or (ii) Manufacturer believes, in its sole discretion, that: (A) OEM or any End User has failed to comply with any term of this Agreement, or accessed or used the Fort Manager or the Fort Platform beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instructions or requirements of Manufacturer; (B) OEM or any End User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (C) this Agreement expires or is terminated. This section does not limit any of Manufacturer’s other rights or remedies, whether at law, in equity, or under this Agreement.
5.1 Payments for Products. OEM will pay Manufacturer the prices for the Products and the licenses for access and use of the Fort Manager and/or the Fort Platform in connection with such Products as set forth on the applicable Order Acknowledgement. Such prices are stated in United States dollars. OEM will be responsible for and will pay transportation and insurance charges as specified in Section 4.3.
5.2 Payments for Maintenance, Support, Updates, and Enhancements. To the extent that OEM elects to receive maintenance and support services and updates and enhancements for the Products, the Fort Manager, and/or the Fort Platform from Manufacturer under Section 6.2, OEM will pay Manufacturer the nonrefundable amounts specified in the applicable Order Acknowledgement for such services.
5.3 Taxes. All amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other taxes and duties. OEM 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 OEM for any and all taxes or duties that Manufacturer may be required to pay in connection with this Agreement or its performance.
5.4 Payment Terms. Unless otherwise agreed, 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).
5.5 Credit Terms. Manufacturer reserves the right, upon written notice to OEM, to declare all sums immediately due and payable in the event of a breach by OEM of any of its obligations to Manufacturer, including the failure of OEM to comply with credit terms. Furthermore, Manufacturer reserves the right at all times either generally or with respect to any specific order by OEM to vary, change or limit the amount or duration of credit to be allowed to OEM. OEM agrees to pay for Products as invoiced.
5.6 Interest. Interest shall accrue on any delinquent amounts owed by OEM for Products at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable usury law.
5.7 No Setoff. OEM will not setoff or offset against Manufacturer’s invoices amounts that OEM claims are due to it. OEM 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.
6.1 By OEM. In addition to the provisions of Section 3.1, OEM will be responsible for providing the following support to its End Users: (i) installing the Products as needed; (ii) training End Users to use the Products, the Fort Manager, and/or the Fort Platform as intended, in a safe manner and in accordance all safety instructions provided by Manufacturer; (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 End Users with any error corrections, updates, and enhancements to the Products, the Fort Manager, and/or the Fort Platform provided to OEM by Manufacturer.
6.2 By Manufacturer. Except as otherwise agreed upon in writing by Manufacturer, Manufacturer shall not be responsible for providing support of any kind to End Users. Subject to receipt by Manufacturer of payments as specified in Section 5.2, during the Term of this Agreement, Manufacturer will provide OEM with error corrections, updates, and enhancements to the Products, the Fort Manager, and/or Fort Platform in accordance with Manufacturer’s then-current standard support and maintenance guidelines for the level of support purchased by OEM as set forth on the applicable Order Acknowledgement (on a Product-by-Product basis).
7.1 Confidential Information. “Confidential Information” means: (a) with respect to Manufacturer, the Products, the Fort Manager, and the Fort Platform; (b) any business or technical information of Manufacturer or OEM, including but not limited to any information relating to Manufacturer’s or OEM’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.
7.2 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.
7.3 Obligations. Each party will maintain the Confidential Information of the other party in strict confidence and will exercise due care, but in no case less than a reasonable degree of 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, to the extent legally permitted, 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.
7.4 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 seek preliminary and permanent injunctive relief and other equitable relief for any breach of this Section 7, without the need to post any bond or security.
8.1 Power and Authority. Manufacturer warrants to OEM that it has sufficient right and authority to grant to OEM all licenses and rights that Manufacturer grants under this Agreement.
8.2 Product Warranty. Manufacturer warrants solely to OEM that the Products will be free from Material Defects for each Product, for the longer of a 1 year period from the date that a Product was delivered to OEM or such other period specified in the applicable Order Acknowledgement (the “Warranty Period”). If a Material Defect is found by OEM in the Products during such Warranty Period, OEM must promptly upon finding such Material Defect, but in no event more than 60 days after finding such Material Defect, notify Manufacturer in writing of such Material Defect, which notice must include information sufficient for Manufacturer to reproduce such Material Defect. OEM shall also provide any additional information as Manufacturer may reasonably request for reproducing or correcting such Material Defect and cooperate with Manufacturer’s efforts to reproduce or correct such Material Defect. OEM’s sole and exclusive remedy for any Material Defect is for Manufacturer to, at its option and without charge to OEM, use commercially reasonable efforts repair or replace the Products provided the applicable Product is returned to Manufacturer in accordance with Manufacturer’s RMA procedures within the Warranty Period. If Manufacturer provides OEM with any modifications, patches, error corrections, bug fixes, or other updates to correct a Material Defect in a Product (“Update(s)”), it is OEMS solely responsibility for integrating any such Updates into OEM Products. In no event shall an Update extend the Warranty Period. The foregoing warranty (a) shall not apply to any nonconformities caused by OEM’s, an End User’s, or other third-party’s modification, alteration, improper handling or misuse of the Product or the Fort Platform; and (b) applies only to OEM and no warranties or other rights are granted to End Users or other third-parties.
If an OEM elects Advanced Replacement, OEM must return the failed unit to FORT within sixty (60) days of receipt of the replacement unit. If FORT does not receive the failed unit within that period, FORT may invoice OEM for the full list price of the replacement unit (or Advanced Replacement fee, as applicable). All returned units are subject to FORT’s inspection to determine warranty eligibility, and FORT retains sole and final discretion to determine whether the failure constitutes a covered warranty claim.
8.3 OEM Product. OEM acknowledges and agrees, and represents and warrants to Manufacturer, that OEM, 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 OEM Products. OEM represents and warrants that it will analyze all aspects of the application, follow applicable industry standards, and follow the information concerning the Products, the Fort Manager, the Fort Platform, and in any other materials provided by Manufacturer.
8.4 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. MANUFACTURER FURTHER DOES NOT WARRANT RESULTS OF THE USE OF THE PRODUCTS, THE FORT MANAGER, OR THE FORT PLATFORM, OR THAT THE PRODUCTS, THE FORT MANAGER, OR THE FORT PLATFORM WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. THE FORT PLATFORM, IN PARTICULAR, IS PROVIDED ON AN “AS-IS, WITH ALL FAULTS” BASIS.
9.1 Indemnity By OEM. Subject to the terms of Section 9.2, OEM 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 OEM or and End User in connection with their activities under this Agreement, including with respect to OEM’s representations and warranties under this Agreement.
9.2 Indemnity by Manufacturer.
(a) Duty to Indemnify.
(i) Manufacturer will indemnify and hold OEM harmless from and against, and will defend or settle at Manufacturer’s own expense, any action or other proceeding brought against OEM 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 OEM 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) OEM provides Manufacturer with reasonable assistance in its defense and settlement.
(iv) If any Products, the Fort Manager, or the Fort Platform are, or in Manufacturer’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if OEM’s or any End User's use of the Products, the Fort Manager, or the Fort Platform is enjoined or threatened to be enjoined, Manufacturer may, at its option: (A) obtain the right for OEM or such End User to continue to use the Products, the Fort Manager, or the Fort Platform as contemplated by this Agreement; (B) modify or replace the Products, the Fort Manager, or the Fort Platform, in whole or in part, to seek to make the Products, the Fort Manager, or the Fort Platform (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Products, the Fort Manager, or the Fort Platform, as applicable, under this Agreement; or (C) by written notice to OEM, terminate this Agreement with respect to all or part of the affected Products, the Fort Manager, or the Fort Platform, and require OEM and End Users to immediately cease any use of the Products, the Fort Manager, or the Fort Platform, or any specified part or feature thereof.
(b) Sole Remedy. THE FOREGOING ARE MANUFACTURER’S SOLE AND EXCLUSIVE OBLIGATIONS, AND OEM’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 9.2 with respect to infringement or misappropriation arising from (i) modifications to the Products, the Fort Manager, or the Fort Platform that were not authorized by Manufacturer, (ii) Product specifications requested by OEM, or (iii) the use of the Products, the Fort Manager, or the Fort Platform in combination with products not provided by Manufacturer.
10.1 Total Liability. MANUFACTURER’S TOTAL LIABILITY TO OEM UNDER THIS AGREEMENT WILL BE LIMITED TO THE PAYMENTS RECEIVED FROM OEM UNDER THIS AGREEMENT.
10.2 Exclusion of Damages. IN NO EVENT WILL MANUFACTURER BE LIABLE TO OEM 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.
10.3 Exceptions. The limitations of liability set forth herein shall not apply to (i) claims by Manufacturer for breach by OEM or End User of Section 2 or 3.3, or infringement or misappropriation of Manufacturer’s Intellectual Property Rights; (ii) claims of breaches of confidentiality under Section 7; (iii) OEM’s indemnification obligations set forth under Section 9; or (iv) claims of gross negligence or willful misconduct.
10.4 Failure of Essential Purpose. The parties have agreed that the limitations specified in this Section 10 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
11.1 Term. The term of this Agreement will begin on the Effective Date of the Order Acknowledgement and will continue for the longer of (i) three (3) years, or (ii) the end of the license term specified in the applicable Order Acknowledgement (the “Term”), unless terminated earlier in accordance with the provisions hereof. This Agreement may be renewed for additional periods upon the mutual written agreement of the parties, although each party acknowledges that the other is not under any obligation to do so.
11.2 Events of Termination.
11.2.1 Termination by Manufacturer. In addition to any other express termination right set forth elsewhere in this Agreement, Manufacturer may terminate this Agreement, effective on written notice to Customer, if Customer (a) fails to pay any amount when due hereunder, and such failure continues more than 30 days after Manufacturer’s delivery of written notice thereof; or (b) breaches any of its obligations under Sections 2, 3.2, 3.3 5, 6, 7, 7.3, 8.3, 9.1 or 12.
11.2.2 Termination for Material Breach or Insolvency. In addition to any other express termination right set forth elsewhere in this Agreement, either party will have the right to terminate this Agreement and/or any Order Acknowledgements if:
(a) the other party breaches any material term or condition of this Agreement and, if such breach is capable of cure, fails to cure such breach within thirty (30) days after written notice;
(b) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or
(c) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
11.3 Effect of Termination.
(a) Upon termination or expiration of this Agreement: (i) OEM will (except as specified in subsection (b) below) immediately return to Manufacturer or (at Manufacturer’s request) destroy all Confidential Information in its possession or control, and an officer of OEM will certify to Manufacturer in writing that OEM has done so; (ii) all rights, licenses, consents, and authorizations granted by Manufacturer under this Agreement will terminate; (iii) OEM will immediately cease all use of the Products, Fort Manager, and/or Fort Platform; and (iv) Manufacturer may disable all OEM and End User access to the Fort Materials or Fort Platform. OEM acknowledges that continued access to the Manager or the Fort Platform (by OEM and/or End Users) after the date of termination or expiration of this Agreement (or, if applicable, expiration of the applicable Term Subscription License) will require a separate license to the Fort Manager and/or the Fort Platform in accordance with Section 2.5.3. If Manufacturer terminates this Agreement due to a material breach by OEM or breach of OEM of its representations or warranties hereunder, all amounts that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and OEM shall pay such amounts, together with all previously accrued but not yet paid amounts, on receipt of Manufacturer’s invoice therefor.
(b) Upon termination or expiration of this Agreement, all unshipped orders will remain in effect unless canceled pursuant to Section 11.2. Further, Manufacturer may, at its option, reacquire any or all Products then in OEM’s possession at prices not greater than the prices paid by OEM for such Products. Upon receipt of any Products so reacquired from OEM, Manufacturer shall issue an appropriate credit to OEM’s account. The due dates of all outstanding invoices to OEM for Products automatically will be accelerated so they become due and payable on the effective date of termination, even if longer terms had been provided previously.
11.4 No Damages for Termination. MANUFACTURER WILL NOT BE LIABLE TO OEM OR ANY END USER FOR DAMAGES OF ANY KIND, INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGES, ON ACCOUNT OF THE TERMINATION OR EXPIRATION OF THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS. OEM WAIVES ANY RIGHT IT MAY HAVE TO RECEIVE ANY COMPENSATION OR REPARATIONS ON TERMINATION OR EXPIRATION OF THIS AGREEMENT UNDER APPLICABLE LAWS OR OTHERWISE, OTHER THAN AS EXPRESSLY PROVIDED IN THIS AGREEMENT. Neither party will be liable to the other on account of termination or expiration of this Agreement for reimbursement or damages for the loss of goodwill, prospective profits or anticipated income, or on account of any expenditures, investments, leases or commitments made by either party or for any other reason whatsoever based upon or growing out of such termination or expiration.
11.5 Nonexclusive Remedy. The exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
11.6 Survival. The rights and obligations of the parties contained in Sections 2.3 (No Standalone Sales), 2.4 (Restrictions and Reservation of Rights), 2.6 (Customer Agreement), 3.3 (Trademarks), 4.5 (Suspension or Termination of Software Licenses), 5.3 (Taxes), 5.6 (Interest), 5.7 (No Setoff), 7 (Confidentiality), 8.3 (OEM Product), 8.4 (Disclaimer of Other Warranties), 9.2(b) (Sole Remedy), 9.2(c) (Exclusions), 10 (Limitations of Liability), 11.3 (Effect of Termination), 11.6 (Survival) and 13 (General) will survive the termination or expiration of this Agreement.
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, the Fort Manager, and the 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, the Fort Manager, and the Fort Platform or documentation or other technical data therefor without complying with the Act and the regulations thereunder.
13.1 Assignment. OEM 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. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
13.2 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 Delaware and the parties irrevocably consent to the personal jurisdiction and venue therein.
13.3 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.
13.4 Force Majeure. Except for payment obligations 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, terrorism, riot, embargoes, acts of civil or military authorities, denial of or delays in processing of export license , fire, floods, earthquakes, accidents, labor disputes, pandemics, epidemics, public health emergencies, fuel crises, or other events beyond the reasonable control of the affected party. The affected party must provide prompt written notice to the other party and use commercially reasonable efforts to mitigate the impact of the Force Majeure Event. The time for performance will be extended for a period equal to the duration of the Force Majeure.
13.5 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.
13.6 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.
13.7 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.
13.8 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.
FORT Robotics, Updated 3/2/26
