OEM Terms & Conditions
of November 10th, 2022
THESE OEM TERMS AND CONDITIONS (THE “OEM TERMS”) GOVERN THE RELATIONSHIP BETWEEN YOU (ALSO REFERRED TO HEREIN AS THE “ORIGINAL EQUIPMENT MANUFACTURER” OR “OEM”) AND AUTERION (COLLECTIVELY, THE “PARTIES”) INCLUDING BUT NOT LIMITED TO THE GRANTS OF LICENSES, THE PROVISION OF PROFESSIONAL SERVICES AND OTHER RIGHTS AND OBLIGATIONS BETWEEN YOU AND AUTERION. BY ENTERING INTO AN AGREEMENT WITH AUTERION THAT REFERENCES THESE OEM TERMS, BY ELECTRONICALLY ACCEPTING THESE OEM TERMS, BY ACTIVATING THE LICENSE KEY TO USE THE SOFTWARE OR BY ACCESSESSING OR BY USING THE AUTERION SUITE OR USING ANY OTHER SOFTWARE AS A SERVICE PROVIDED BY AUTERION FOR INTEGRATION WITH YOUR PRODUCTS, YOU ACKNOWLEDGE AND REPRESENT THAT YOU HAVE READ AND UNDERSTAND THESE OEM TERMS AND THAT THEY GOVERN YOUR RELATIONSHIP WITH AUTERION (HEREINAFTER, THE “AGREEMENT”). IF YOU ARE ALSO PURCHASING OR USING AUTERION HARDWARE FROM AUTERION, THEN, IN ADDITION TO THESE OEM TERMS, AUTERION’S HARDWARE TERMS OF SALE, ATTACHED HERETO AS EXHIBIT 3, SHALL APPLY TO SUCH PURCHASES.
No other or additional terms or conditions shall be of any effect between you and Auterion unless Auterion has specifically agreed to such terms or conditions in a writing executed by its duly authorized representative. Auterion hereby expressly rejects any proposed additional or different terms or conditions, including without limitation any of your general terms and conditions, contained in any document or electronic file you or anyone acting on your behalf in any way provides to Auterion or any of its representatives, and such proposed terms shall not be binding on Auterion. Failure of Auterion to specifically object to specific terms and conditions communicated by you shall in no event be construed as an acceptance of such terms and conditions. In the event of any conflict between these OEM Terms and the Hardware Terms of Sale, the Hardware Terms of Sale shall prevail, and in the event of a conflict between these OEM Terms or the Hardware Terms of Sale and an agreement signed by Auterion, the terms of the signed agreement shall prevail.
Capitalized terms in these OEM Terms have the meanings assigned in Exhibit 1.
2. License Grants and Distribution Rights
2.1 Software License
Subject to and conditioned on OEM’s compliance with the Agreement and payment of the applicable Fees, Auterion grants OEM a limited, non-exclusive, non-transferable, revocable and non-sublicensable license in the Territory during the applicable Term solely to: (a) reproduce the Software in object code form only (except for Open Source Components, which may be copied in source code form as and to the extent permitted by the open source license agreements governing such Open Source Components), for purposes of developing and manufacturing Integrated Products that incorporate or are otherwise bundled with the Software; (b) demonstrate, market, and distribute the Software to Customers in the Territory solely for such Customers’ end use under the EULA as incorporated in or bundled with the Integrated Products; (c) use the Software internally for testing, servicing, and supporting the Integrated Products, and reproduce the Software in the quantities and to the extent necessary for these purposes; and (d) incorporate the Software Documentation, in whole or in part, into the documentation for the Integrated Products, reproduce such quantities of the Software Documentation as are necessary solely for purposes of such incorporation, and distribute to Customers such Software Documentation as incorporated in the Integrated Product documentation (each of the foregoing items, (a) through (d), a “Permitted Purpose”). OEM shall be solely responsible for configuring, assembling, manufacturing, marketing, packaging, and shipping all Integrated Products.
2.2 Source Code License
If so provided in the Agreement, Auterion grants to OEM, subject to the terms and conditions of the Agreement and payment of any applicable Fee a limited, non-exclusive, non-transferable, revocable and non-sublicensable license in the Territory during the applicable Term solely to: use and modify the Source Code and subject to prior written approval by Auterion, and to distribute modified versions of the Software, only in object code form and incorporated or bundled with the Integrated Products, to Customers in the Territory solely for such Customers’ end use in accordance with the EULA (each, a “Permitted Purpose”). OEM shall not alter any key functionalities of the Software including but not limited to, interaction with the Auterion Suite, Pilot/User Login, accounts and other services. Any modification of the Software and any derivative work shall be subject to approval by Auterion before such modified Software is distributed with Integrated Products and shall be deemed Software subject to terms and conditions of these OEM Terms.
2.3 Reference Design License
If so provided in the Agreement, subject to the terms of the Agreement and payment of the applicable Fees, Auterion grants to OEM a limited, non-exclusive, non-transferable, revocable and non-sublicensable license in the Territory during the applicable Term to: use, copy and modify the Reference Design and subject to prior approval by Auterion, redistribute Integrated Products based on the Reference Design solely in conjunction with Software licensed from Auterion, and to use, copy and distribute related technical documentation solely in connection with the development, manufacture and support of the Integrated Product (each, a “Permitted Purpose”). OEM shall not alter any key functionalities of the Reference Design including but not limited to, the microcontrollers contained within, the power architecture, interfaces or sensor set. Any version of the Reference Design or Derivative Works thereof that are integrated into an Integrated Product shall be subject to Auterion’s prior written approval.
2.4 Provision of Access to Auterion Suite
Subject to the Agreement and payment by OEM of the applicable Fees, Auterion will during the applicable Term, provide to OEM access and use of Auterion Suite on a non-exclusive, revocable, non-transferable basis, solely for use by OEM for its internal business purposes, through its Authorized Users.
2.5 Auterion Suite Documentation License
Auterion hereby grants OEM a non-exclusive, non-sublicensable, non-transferable license to use Auterion Suite Documentation during the Term solely for OEM’s internal business purposes in connection with its use of Auterion Suite.
2.6 Service and System Control
Except as otherwise expressly provided in the Agreement, as between the Parties:
(a) Auterion has and will retain sole control over the operation, provision, maintenance, and management of Auterion Properties; and
(b) OEM has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the OEM Systems, and sole responsibility for all access to and use of Auterion Properties by any Person by or through OEM Systems or any other means controlled by OEM or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to Auterion Suite or Auterion; (ii) results obtained from any use of Auterion Suite or Auterion Properties; and (iii) conclusions, decisions, or actions based on such use.
2.7 Third-Party Materials
Auterion may provide Third-Party Materials, including Open-Source Components, as incorporated in or in connection with Software or Auterion Suite. These Third-Party Materials may be subject to their own license terms. OEM will comply with, and will ensure that its Authorized Users comply with, all such third-party license terms, including all Open-Source Software license terms regarding usage, distribution and modification, provided in advance to OEM, each as may be amended from time to time in accordance with the terms thereof. Such Third-Party Materials and the applicable licenses are listed at: www.auterion.com/software-licenses-notices and in a file in the root of the distribution file structure of the Software Product named “NOTICES.TXT”. If OEM does not agree to abide by the applicable license terms, then OEM may not install, access or use the Software or Auterion Suite, as applicable. If OEM engages Auterion to install or use any Third-Party Materials, OEM will have and maintain sufficient rights or licenses to such Third-Party Materials to allow Auterion to use such Third-Party Materials to perform its obligations under the Agreement.
2.8 Auterion Hardware
From time to time, Auterion and OEM may agree that Auterion sells, and OEM purchases, Auterion Hardware to facilitate the integration of the Software and Auterion Suite into Integrated Products. OEM shall use Auterion Hardware only together with the Software and the integration of Auterion Hardware into Integrated Products shall be subject to the provisions of these OEM Terms. OEM shall not resell Auterion Hardware except as integrated into Integrated Products. Except as modified by the Agreement or any other written agreement between the parties, the terms of any purchase and sale of Auterion Hardware shall be subject to Auterion’s then current general terms and conditions for the sale of goods (the “Hardware Terms of Sale”). The current Hardware Terms of Sale [are attached hereto as Exhibit 3.
2.9 Trademark License and Use
(a) Subject to and conditioned on OEM’s compliance with the Agreement, Auterion hereby grants OEM a limited, non-exclusive, non-transferable and non-sublicensable, royalty-free license in the Territory during the Term to use the Auterion Marks solely to market and promote the Integrated Products subject to the Agreement in accordance with Auterion’s then current quality control, usage, and other Auterion Mark guidelines, as the same may be updated by Auterion from time to time. All uses of Auterion Marks, and all goodwill associated therewith, shall inure solely to the benefit of Auterion. OEM agrees that when using Auterion Marks, in any advertising, promotional material or on its website, OEM will include the following notice: “[Name of Auterion Mark] is a registered trademark of Auterion Ltd. in Switzerland and other countries. Used under license.” All Integrated Products shall be branded with OEM’s trademark, plus any additional marks as selected by OEM, and shall also bear the words “Powered by AuterionTM“ (and, upon registration of the mark with the US Patent and Trademark Office, “Auterion©”), in each case using the “Auterion” image mark. Before starting to market the Integrated Products, OEM shall submit an image file with the proposed placement of Auterion Marks to Auterion for its approval, which Auterion shall not unreasonably withhold or delay.
(b) OEM shall not at any time (i) challenge, or cause, induce, authorize, or assist any Person to challenge, the validity of Auterion Marks or Auterion’s ownership, use, or registration of or rights in any Auterion Marks or (ii) take any action in derogation of Auterion’s rights in Auterion Marks, including by using, licensing, or applying to register any Mark that is identical or substantially similar to any of the Auterion Marks.
(c) If OEM acquires any rights in any Mark that is identical or substantially or confusingly similar to any of Auterion Marks, by operation of law or otherwise, OEM shall and does hereby assign, at no additional cost, all such rights to Auterion and its successors, together with all associated goodwill in and applications and registrations for such Mark.
(d) OEM shall not directly or indirectly engage in any unfair, unethical, misleading, or deceptive acts or practices that are or might be detrimental to the public or the goodwill or reputation of Auterion or any Auterion Properties, including any dissemination, display, or use of any false, misleading, or deceptive representations, depictions, or materials for or in connection with any marketing, promotion, or distribution of any Integrated Products.
2.10 No Implied Rights
The Auterion Properties are provided to OEM solely for the Permitted Purposes under the express terms of the licenses and access and use rights granted in the Agreement. Except for the limited rights and licenses expressly granted by this Agreement, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to OEM or any third-party any Intellectual Property Rights or other right, title, or interest in or to any of the Software or other Auterion Properties. Except with respect to the sale of Auterion Hardware, all uses in the Agreement of the terms “sell,” “sale,” “resell,” “resale,” “purchase,” “price,” and the like mean the purchase or sale of a license: (a) in the case of OEM, under the Agreement; and (b) in the case of Customers, under the EULA. Nothing in the Agreement grants or conveys, or permits OEM to grant or convey, any ownership right in any Auterion Properties or Third-Party Materials, or any article or copy thereof or Intellectual Property Rights therein.
2.11 Suspension or Termination of Auterion Suite
Auterion may, directly or indirectly, and by use of disabling technology or any other lawful means, suspend, terminate, or otherwise deny OEM’s, any Authorized User’s, or any other Person’s access to or use of all or any part of Auterion Suite, without incurring any resulting obligation or liability, if: (a) Auterion receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Auterion to do so; or (b) Auterion believes, in its good faith discretion, that: (i) OEM or any Authorized User has failed to comply with the Agreement, or accessed or used the Auterion Suite beyond the scope of the rights granted or for a purpose not authorized under the Agreement or in any manner that does not comply with any instruction or requirement of the Specifications; (ii) OEM or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities (relating to or in connection with any of the Auterion Suite); or (iii) the Agreement expires or is terminated. This Section 2.11 does not limit any of Auterion’s other rights or remedies, whether at law, in equity, or under the Agreement.
3.1 OEM shall not, and shall not permit any other Person to, access, use, or perform any other act on or relating to any Auterion Properties except as expressly permitted by the Agreement and, in the case of any licensed Third-Party Materials, the applicable third-party license agreement.
3.2 Without limiting the foregoing, except as otherwise expressly permitted in the Agreement, OEM shall not at any time, directly or indirectly:
(a) market, distribute, license, or otherwise make available any Software, Auterion Hardware, or Auterion Suite, including (i) as a single product, on a stand-alone basis, or in any form other than incorporated in or otherwise as an integral part of an Integrated Product, or (ii) on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
(b) use any Software or Auterion Hardware for OEM’s own internal business operations unless it enters into a separate license agreement with Auterion permitting such use or use Auterion Suite for any purposes beyond the scope of access granted in the Agreement;
(c) market, distribute, license, or otherwise make available any Integrated Product that it has not tested in accordance with Section 4.2 or at any time during which OEM is not in compliance with Auterion’s certification standards as set forth in Section 5.5;
(d) (i) market, distribute, license, or otherwise make available, or provide support or other services for, any Integrated Product outside the Territory or for any actual or potential use outside the Territory; or (ii) export, re-export, or release, directly or indirectly, any Integrated Product to any location, jurisdiction, or Person outside the Territory;
(e) copy, modify, or create any derivative works or improvements of any Software, Auterion Hardware, Auterion Suite or Documentation;
(f) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of any Software, Auterion Hardware or Auterion Suite or any part thereof, except as, and only to the extent that, these acts are permitted with respect to any Open-Source Components under the applicable open-source license;
(g) bypass, breach, or disable any security device, copy control, or digital rights management tool, or other protection used by any Software, Auterion Hardware, or Auterion Suite, or induce or assist any Person to do so;
(h) use or incorporate any Open-Source Components in or in connection with any Integrated Products or OEM Components, including in their development, making, or operation, other than such Open-Source Components as have been (i) provided by Auterion as described in Section 2.1 or (ii) fully disclosed to and expressly approved in writing by Auterion after Auterion has received and has had at least thirty (30) days to review the source code of and applicable license terms controlling such Open-Source Components, for which Auterion may give or withhold approval in its sole discretion;
(i) represent itself as an agent of Auterion, commit Auterion to any contracts, or incur any obligation or liability whatsoever on behalf of Auterion for any purpose, except with the prior written approval of Auterion;
(j) make any representations, warranties, guarantees, indemnities, claims, or other commitments: (i) actually, apparently, or impliedly on Auterion’s behalf; or (ii) concerning or relating to any Software, Auterion Hardware, or Auterion Suite that are in addition to or inconsistent with any then-existing representations, warranties, guarantees, indemnities, claims, or other commitments in the Agreement, the EULA, the Documentation, or any written documents provided or made available by Auterion to OEM that concern or relate to that Software or Auterion Suite;
(k) license, purchase, or otherwise procure Software, Auterion Hardware, or Auterion Suite from any Person other than Auterion;
(l) access or use Auterion Properties for purposes of: (i) benchmarking or competitive analysis of such Auterion Properties; or (ii) developing, producing, marketing, distributing, licensing, or selling any product or service that may compete with any of the Software or Integrated Products;
(m) market, distribute, license, or otherwise make available in stand-alone, bundled, or any other form, any products or services, or any product or service components, that can or do compete with any Software, Auterion Hardware, or Integrated Products;
(n) market, distribute, license, or otherwise make available any Integrated Products to or through any Person other than directly to Customers without: (i) the express prior written approval of Auterion and (ii) first entering into a written agreement with such Person on terms and conditions acceptable to Auterion and that designate Auterion as an intended third-party beneficiary of that agreement;
(o) input, upload, transmit, or otherwise provide to or through Auterion Suite or Auterion Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
(p) remove, delete, add to, alter, or obscure the Specifications, Documentation, or EULA, or any warranties, disclaimers, copyright, trademark, patent, or other intellectual property, proprietary rights, or other notices, or any marks, symbols, or serial numbers (including any Auterion Marks) that appear on or in connection with any Software, Auterion Hardware, or Auterion Suite as provided or directed by or on behalf of Auterion;
(q) knowingly distribute Software or Auterion Hardware, or allow access or use of Auterion Suite to or by a Person that OEM has reason to believe (through notification by Auterion or otherwise) is infringing, misappropriating or otherwise violating the Software, Auterion Suite, Integrated Products or OEM’s or Auterion’s Intellectual Property Rights or is otherwise involved in unauthorized use of the Software, Auterion Suite or Integrated Products;
(r) under or in connection with any part of the Agreement or its subject matter, perform any act that, or fail to perform any act the omission of which, infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or violates any applicable Law;
(s) use, modify, disclose or exploit the Source Code other than in connection with the Integrated Product and in accordance with Section 2.2; or
(t) use, modify, disclose or exploit the Reference Design other than in connection with Auterion Software including by creating a Derivative Work.
Without limiting any other suspension or termination right or remedy of Auterion stated elsewhere in the Agreement, any use, modification or exploitation of the Source Code or the Reference Design other than as set forth in Section 2. 2 and Section 2.3, respectively, shall be strictly prohibited and shall result in immediate and automatic termination of the Agreement.
4.1 Integration of Software and Auterion Suite
Subject to the terms and conditions of Section 9 (Confidentiality), Auterion shall provide to OEM, and OEM shall provide to Auterion, all information and materials in its possession or control that are reasonably necessary or desirable to enable: (a) Auterion to modify the Software, any Auterion Hardware, and Auterion Suite so that they are properly configured to operate in or with the Integrated Products; (b) OEM to modify the Integrated Products so that they operate with the Software, any Auterion Hardware, and Auterion Suite, in each case in accordance with the Specifications and any functional specifications for the Integrated Products to be agreed on by the parties in writing. To the extent necessary to develop other or additional written technical specifications to achieve the foregoing purposes, the parties shall collaborate to timely develop such specifications and agree to them in writing. Each Party shall be responsible for its own costs incurred in connection with this Section 4.1. Upon the Parties’ written agreement to such other or additional specifications, such specifications shall constitute Specifications as defined in Exhibit 1.
4.2 Product Testing
Before and as a precondition to the commercial release of Integrated Products, OEM shall conduct all testing that may be necessary to determine if the Software, any Auterion Hardware, and Auterion Suite, when integrated with the Integrated Product, operate in accordance with any functional specifications to be agreed on by the parties in writing. Auterion shall have the right to observe or participate in all or any part of OEM’s testing of the Integrated Products. Auterion may elect to waive one or more testing requirements if Auterion determines, in its sole discretion, that the requirements specific to the Integrated Products have been otherwise satisfied. The Parties shall bear their own costs and expenses in connection with the testing obligations under this Section 4.2.
5. OEM Obligations
5.1 Manufacturing, Marketing and Distribution
At all times during the Term, OEM shall, in accordance with the Agreement and at its own cost:
(a) manufacture the Integrated Products and promote, market, sell, and distribute the Integrated Products to Customers, in connection with which OEM shall conduct business in a manner that is consistent with good business practice and reflects favorably at all times on the Products and the good name, goodwill, and reputation of Auterion;
(b) ensure that Customers receive, are aware of, and accept the terms and conditions of the EULA before using the Integrated Products and promptly report to Auterion in writing any actual or suspected EULA non-compliance;
(c) promptly give Auterion written notice of and investigate and address any notice, complaint, or claim of which OEM becomes aware concerning any data security breach, personal injury, property damage, or other injury alleged to have been caused, in whole or in part, by any Integrated Product, any use of an Integrated Product, or any act or omission of OEM under or in connection with the Agreement; and
(d) store all copies of the Products in appropriate storage conditions and provide appropriate security for the Products.
5.2 Marketing and Distribution of Auterion Suite
Auterion hereby authorizes and appoints OEM as a reseller of Auterion Suite. At all times during the Term, OEM shall, in accordance with the Agreement, at its own cost, market, (re)sell and distribute Auterion Suite to Customers.
5.3 Customer Information and Data Law Compliance
OEM shall at all times during and after the Term:
(a) provide to Auterion, in such written, electronic, or other form as Auterion may reasonably request for purposes of administering or enforcing the terms of the licenses to the Software or access rights to Auterion Suite and providing Product maintenance and support or other Services to Customers, all Customer Information collected or received by OEM, including evidence of Customers’ acceptance of the EULA; and
(b) for any Customer Information consisting of or reflecting personal information: (i) notify and, where required by applicable Law, obtain the written consent of, all Customers that their information may be transferred or disclosed to Auterion and third parties for the foregoing purposes; (ii) maintain appropriate administrative, physical, and technical safeguards for the protection of the privacy, security, confidentiality, and integrity of such Customer Information; and (iii) comply, and ensure that its employees, agents, and contractors comply, with all applicable Laws regarding data privacy and security, required data breach notifications, and personal information.
5.4 Equipment; Customer Account
OEM will be responsible for obtaining and maintaining any and all Equipment. OEM will also be responsible for maintaining the security of the Equipment, OEM’s customer account with Auterion, passwords (including administrative and user passwords) and files. OEM will not allow unauthorized individuals to gain access to such items (including any OEM personnel that resign or are terminated) and must immediately notify Auterion of any unauthorized use of such items or any other breach of security related to OEM’s customer account, Auterion Suite or Equipment. OEM will be responsible for all uses of OEM’s customer account, Auterion Suite or Equipment with or without OEM’s knowledge or consent.
5.5 OEM Certification
At all times during the Term OEM shall have and maintain all required certifications, credentials, licenses, registrations, approvals, and permits necessary to lawfully conduct business in accordance with the Agreement. OEM will ensure that each Integrated Product complies with Auterion’s quality standards and product specifications and is accordingly certified under Auterion’s hardware certification program and, as such program exists from time to time, for the Software, in order to ensure that the Software and any Auterion Hardware can be appropriately bundled or integrated with the Integrated Product. If the Integrated Product is not already certified as of the Effective Date, OEM will run Auterion’s hardware certification test suite in accordance with the hardware certification testing guidelines provided by Auterion from time to time. OEM shall be responsible for all applicable fees related to such certification programs as notified in advance by Auterion in writing. OEM will be permitted to run the automated certification and/or compatibility tests and submit the results to Auterion. OEM acknowledges that there is no obligation on the part of Auterion to certify or list any Integrated Product that does not pass Auterion’s certification standards and Auterion may terminate the Agreement for OEM’s failure to achieve such certification. Auterion will waive costs related to certification under Auterion’s hardware certification program for one (1) year commencing on the Effective Date of the Agreement.
5.6 Export Regulation
The Software, Source Code, Reference Design, any Auterion Hardware, Auterion Suite and the Documentation, and any code and related technical data included with, or contained in, such Software, Source Code, Reference Design, Auterion Hardware, or Auterion Suite, and the Integrated Products (collectively, “Regulated Items”) may be subject to export control laws and regulations of the United States and/or other countries (including the U.S. Export Administration Regulations (EAR), 15 C.F.R. §§ 730.1 to 774.1m and the U.S. International Traffic in Arms Regulations (ITAR), 22 C.F.R. §§ 120.1 to 130.17) (collectively, “Export Control Laws”). OEM shall not, and shall not permit any third parties to, directly or indirectly, export, re-export, or release any Regulated Item to any jurisdiction or country to which, or any party to whom, the export, re-export, or release of any Regulated Items is prohibited by any Export Control Laws. OEM shall be responsible for any breach of this Section by its, and its successors’ and permitted assigns’: Affiliates, employees, officers, directors, customers, agents, distributors, resellers, or vendors. OEM shall comply with all applicable Export Control Laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, or releasing any Regulated Items. OEM shall provide prior written notice of the need to comply with such laws and regulations to any person, firm, or entity which it has reason to believe is obtaining any such Regulated Item from OEM with the intent to export or re-export.
5.7 Corruption Prevention
OEM shall not, and shall not permit any of its Affiliates or any of its or their respective Representatives to, promise, authorize or make any payment to, or otherwise contribute any item of value to, directly or indirectly, any government official, in each case, in violation of any applicable anti-bribery or anti-corruption Laws in any jurisdiction, including the U.S. Foreign Corrupt Practices Act (collectively, “Anti-Corruption Laws”). OEM shall, and shall cause all of its Affiliates and its and their Representatives to, cease all of its or their respective activities, as well as remediate any actions taken by OEM, its Affiliates and its and their Representatives in violation of any applicable Anti-Corruption Laws. OEM shall maintain systems or internal controls (including, but not limited to, accounting systems, purchasing systems and billing systems) to ensure compliance with any applicable Anti-Corruption Laws. Each Party agrees that it will not knowingly offer or give, or agree to give, to any employee, representative or third party acting on behalf of the other Party, nor knowingly accept, or agree to accept, from any employee, representative or third-party acting on behalf of the other Party, any unlawful payment, unlawful compensation or unlawful remuneration, be it monetary or other thing of value, in connection with the negotiation, execution, conclusion or the performance of the obligations contained within the Agreement. The parties shall promptly notify each other if they become aware of any breach of this provision, and a breach of this provision shall be considered cause for termination by the non-breaching Party under Section 14.3.
6. Supply of Auterion Properties
6.1 Supply of Software
At such time after the completion of product testing pursuant to Section 4.2 as the Parties agree that the Software and Integrated Product are compatible and the Integrated Product is ready for commercial release, OEM shall retain the final, master copy of the Software provided to OEM pursuant to Section 4.2 to enable OEM to exercise its license rights pursuant to Section 2.
6.2 Additional and Replacement Copies
OEM may request replacement or additional master copies of Software from Auterion. Auterion reserves the right to charge for such replacement or additional copies Auterion’s then current fees charged to its authorized OEM distributors for such copies.
6.3 Supply of Source Code
Subject to OEM’s compliance with the terms of the Agreement, Auterion may grant OEM access to the Source Code through its repository or exposed APIs with respect to the Source Code including but not limited to those under Section 2.2. Auterion’s exposed APIs shall be used by OEM only. Any Customer or third-party use of Auterion’s public or private APIs shall be the sole responsibility of OEM.
6.4 Supply of Reference Designs
Subject to OEM’s compliance with the terms of this Agreement, Auterion will make the Reference Designs and accompanying information available in electronic format for download, using a user authorization mechanism (i.e., password protected access).
6.5 Auterion Hardware
Auterion will deliver Auterion Hardware in accordance with the Hardware Terms of Sale.
6.6 Right to Change
Auterion may, in its sole discretion, make periodic modifications, upgrades or updates to the Software, Source Code, Reference Design, any Auterion Hardware, or Auterion Suite, including Maintenance Releases or New Versions of the Software or Auterion Suite, or change the methods by or media in which Auterion makes, markets, distributes, licenses, or otherwise makes available, and, where applicable, provides any Services relating to, any Software, Source Code, Reference Design, Auterion Hardware, or Auterion Suite, as Auterion deems necessary or useful to: (a) maintain or enhance: (i) the quality of the Software, Auterion Hardware, or Auterion Suite or their delivery to its customers; (ii) the competitive strength of or market for the Auterion’s Software or Service offerings; or (iii) the Software, Auterion Hardware, or Auterion Suite’ cost efficiency or performance; or (b) to comply with applicable law. Such modifications will not materially reduce the level of performance, functionality, security or availability of the Software, Auterion Hardware, or Auterion Suite during the Term, unless such modification is made to reflect changes in applicable law or to address an emergency or threat to the security or integrity of the Software, Auterion Hardware, or Auterion Suite. In the event of any such changes, Auterion shall:
(a) give OEM written notice of such changes as soon as reasonably practicable;
(b) provide OEM, with revised Specifications and such additional information and materials as OEM may reasonably request to enable OEM to modify the Integrated Products to maintain their compatibility with the Software, Auterion Hardware, and/or Auterion Suite or to incorporate the modified Software in the Integrated Products; and
(c) provide OEM, upon OEM’s request, with such additional consultation and training as Auterion makes generally available to its authorized OEM distributors or as Auterion deems reasonably necessary.
6.7 Right to Suspend or Terminate License and Disable Reproduction
Auterion may in its sole discretion and without any obligation or liability to OEM, (a) temporarily or permanently disable any or all copies of Software or (b) discontinue, as applicable, Auterion’s licensing, maintenance, or support of Software to OEM if for any reason Auterion temporarily or permanently discontinues the licensing, maintenance, or support of such Software entirely or generally with respect to OEM distribution. Auterion may in such cases amend the Agreement to remove mentions of such software.
7. Professional Services
7.1 Customer Support
Except as expressly provided otherwise in Section 7.2, OEM is solely responsible for providing technical support to Customers for the Integrated Products, including Software, Source Code, Reference Designs, or Auterion Hardware incorporated in or used with the Integrated Products and access to and use of Auterion Suite. OEM shall offer to Customers technical support for the Integrated Products in a form acceptable to Auterion. OEM shall direct Customers to contact only OEM for technical support for the Integrated Products.
7.2 Support Services to OEM
At OEM’s written request, provided that OEM is then-current in its payment of all Fees and charges due to Auterion hereunder, including Auterion’s fees for support, maintenance, and training, Auterion will provide to OEM after the end of the Warranty Period, basic support Services for the Software and Auterion Suite. Auterion shall decide at its sole discretion which support Services constitute basic support. Auterion shall have no obligation to provide support Services it considers not to be basic. In particular, Auterion shall have no obligation to provide support Services for: (a) modified or damaged Software, (b) Software or Auterion Suite that is not the then current release available from Auterion, (c) problems caused by OEM’s or the Customer’s negligence, hardware malfunction, or other causes beyond the reasonable control of Auterion, (d) Software installed on or Auterion Suite accessed from a hardware or operating system environment that is not supported by Auterion, or, (e) pre-release or beta products that are not part of an official Auterion beta program.
7.3 Professional Services to OEM
For any Service deemed to not be covered under Section 7.2 OEM may request such professional Services through a Service Order (“Order”) provided that OEM is then-current in its payment of all Fees and charges due to Auterion. Such an Order may be placed by OEM in any written form.
Auterion shall have no obligation to perform any Services other than those that are expressly mutually agreed upon in an Order. Approval of an applicable Order will only be valid when made in writing by Auterion.
Auterion will provide such Services using reasonable skill and care. Auterion will perform the Services through its own personnel or through its subcontractors.
To the extent that Auterion’s performance is limited, hindered or delayed as a result of a failure on the part of the OEM, Auterion shall not be held liable for any related delays or failures to provide the Services. Auterion shall also not be held liable for any delays or non-performance resulting from acts and circumstances beyond Auterion’s reasonable control. Furthermore, no such failure on the part of the OEM nor any failure beyond Auterion’s reasonable control shall in any way affect OEM’s obligations to pay the Fees in full for any affected Services.
OEM shall supply to Auterion all Work Materials required to perform the Services. Such Work Materials shall include all necessary OEM Properties including but not limited to units of the product to be integrated or Integrated Products in an amount appropriate for the scale of the project, this being no less than one (1) unit. These Work Materials shall be provided at no cost and shall be delivered to Auterion’s address at OEM’s own risk and expense.
Auterion may be required to provide some Services away from its places of business. In such cases OEM shall fully reimburse Auterion for all reasonable travel expenses, including but not limited to, flights, local transportation, meal per diem and accommodation.
7.4 Changes to requested Services
In the event that OEM wishes to make changes to already mutually agreed upon Services in an Order, OEM shall submit to Auterion a written request stating the requested modifications or additions. Such modifications will be negotiated in good faith. The modifications or additions to the Order will come into force upon written approval by Auterion. No addition nor any modification to a confirmed Order shall affect the obligation of OEM to pay for any Services performed prior to such modification or addition.
7.5 Support Contact
OEM shall appoint one individual within OEM’s organization who shall have the authority to act on behalf of OEM in matters pertaining to the OEM’s support requests and to serve as the primary contact between OEM and Auterion with respect to OEM’s receipt of Auterion technical support. OEM shall initiate all support inquiries and requests through this individual and ensure that he or she has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity. Upon Auterion’s written request with or without any reason, OEM shall promptly replace OEM’s support contact.
7.6 Maintenance Releases
(a) During the Term, Auterion will make available to OEM at no additional cost a single master copy of any Maintenance Release to the current version of the Software as and when Auterion generally releases or makes such Maintenance Release available to Auterion’s other customers;
(b) OEM will promptly incorporate in the production of Integrated Products all Maintenance Releases that Auterion makes available to OEM and notify its Customers of Auterion’s general commercial distribution of each such Maintenance Release on a timely basis and in no event later than 30 days after OEM’s receipt of a master copy of such Maintenance Release, as applicable; and
(c) within 30 days after OEM’s receipt of any Maintenance Release cease all: (i) incorporation of any earlier release of the Software in the production of Integrated Products; and (ii) marketing, distribution, licensing, and sale of any Integrated Products that use or contain any earlier release of the Software; and (iii) destroy such earlier release or archive such release for use solely for purposes of conducting development, maintenance, or support of the Integrated Products in accordance with Section 2.1, Section 7.1, and all other terms and conditions contained within these OEM Terms
7.7 Prohibited OEM Services
OEM shall not service, support, maintain, correct, repair, or replace any Software except as and to the extent expressly permitted under this Section 7.
8. Fees and Payment
OEM shall pay Auterion for each copy of any Software distributed in or with an Integrated Product. The corresponding license fee shall be as agreed upon in the Agreement.
OEM shall pay to Auterion the license fee agreed upon in the Agreement for the Reference Design. The license fee shall be per Integrated Product distributed that integrates the Reference Design (as may be applicable).
Any fees associated with any sale of Auterion Hardware will be governed by the Hardware Terms of Sale.
For all Services performed by Auterion, OEM shall pay to Auterion the associated Fees and Charges. The corresponding Fees for Services shall be listed in the Agreement and may be adjusted by Auterion at its sole discretion at the beginning of each calendar year upon written notice to OEM.
No Fee deductions, credits, or allowances may be taken except for return credits allowed in accordance with the terms and conditions of Section 8.2. OEM shall make all payments of Fees in accordance with Section 8.5.
Except where otherwise expressly provided in the Agreement, each Party is solely responsible and liable for all costs and expenses it incurs in entering into and performing the obligation set forth in the Agreement.
All Fees and other amounts payable by OEM under the Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, OEM is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by OEM hereunder, other than any taxes imposed on Auterion’s income (“Taxes”).
OEM shall make all payments when due under the Agreement as follows:
(a) within thirty (30) days following the end of each calendar month of the Term (each, a “Reporting Period”), OEM shall pay Auterion all Fees accrued during such Reporting Period;
(b) OEM shall pay Auterion all Service fees, reimbursable expenses, and other amounts payable (other than Fees) within thirty (30) days after receipt of Auterion’s invoice therefor; and
(c) unless otherwise agreed in writing, OEM shall make all payments in US dollars to the address or account provided by Auterion. OEM shall pay all amounts due without setoff, deduction, recoupment, or withholding of any kind or for any purported reason. OEM is solely responsible for collecting payment for all sales and distribution of Integrated Products. OEM’s inability or failure to collect the purchase price for any Integrated Product does not affect OEM’s obligation to pay Auterion in strict accordance with this Section 8.
8.5 Late Payment
If OEM fails to make any payment when due then, in addition to all other remedies that may be available:
(a) Auterion may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
(b) OEM shall reimburse Auterion for all costs incurred by Auterion in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and
(c) if such failure continues for sixty (60) days following written notice thereof, Auterion may disable, or withhold, suspend, or revoke its grant of a license or right to use of, or performance of Services relating to, any Software or Auterion Suite until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to OEM or any other Person by reason of any such action.
8.6 Recordkeeping and Reporting
(a) maintain books, records, and accounts of all transactions and activities covered by the Agreement and permit full examination thereof by Auterion and its representatives in accordance with Section 8.7; and
(b) within ten (10) Business Days after the end of each Reporting Period, together with payment pursuant to Section 8.4, submit to Auterion in a computer-readable format acceptable to Auterion, then-current, complete, and accurate reports sufficient to verify each of the following for such Reporting Period: (i) the number of copies of Software made by OEM; (ii) OEM’s inventory of Software; (iii) OEM’s inventory of Auterion Hardware; (iv) OEM’s inventory of Integrated Products; (v) all outstanding orders for Integrated Products; (vi) all sales, licensing, and other commercial exploitation of Integrated Products, in terms of both unit and dollar volume; and (vii) subject to Section 5.3, all Customer Information OEM has collected or otherwise acquired.
8.7 Audit and Inspection
On five (5) Business Days’ notice, during the Term and for four (4) years after the expiration or earlier termination of the Agreement, OEM shall make available for audit and inspection by Auterion or its representatives: (a) all files in OEM’s possession or control relating to any production, marketing, inventory, sale, licensing, or other transactions of or relating to the Integrated Products that took place in the immediately preceding 12 months; and (b) all Integrated Products, Software and Auterion Hardware in OEM’s possession or control, including all such Integrated Products, Software and Auterion Hardware then in OEM’s inventory. Auterion may conduct any audit or inspection under this Section 8.7 at any time during regular business hours. OEM shall provide reasonable cooperation and assistance in connection with all such audits and inspections and make appropriate OEM personnel available for this purpose.
9.1 Confidential Information
In connection with the Agreement each Party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”). Subject to Section 9.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligation, whether or not marked, designated or otherwise identified as “confidential”. Without limiting the foregoing, all Specifications and unpublished Documentation are and will remain Confidential Information of Auterion, and the financial terms and the contents of the Agreement and shall remain the Confidential Information of both parties.
Except for personal information or any third-party information that the Receiving Party is under a contractual or other binding obligation to maintain in confidence, Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with the Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with the Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records, was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
9.3 Protection of Confidential Information
As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall during the Term of the Agreement and for a period of five (5) years from its expiration or termination for any reason:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with the Agreement;
(b) except as may be permitted by and subject to its compliance with Section 9.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with the Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 9; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9;
(c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
(d) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 9.
9.4 Compelled Disclosures
If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 9.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 9.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, upon the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
10. Intellectual Property Rights
10.1 Intellectual Property Ownership
(a) All right, title, and interest in and to Auterion Properties and Third-Party Materials, including all Intellectual Property Rights therein and derivative works thereof, are and will remain, respectively, with Auterion and the respective rights holders in the Third-Party Materials. OEM has no right or license with respect to any Auterion Properties or Third-Party Materials or derivative works thereof except as expressly licensed under Section 2.1, 2.2, 2.3, 2.5 or the applicable third-party license, in each case subject to the requirements and restrictions set forth in the Agreement. All other rights in and to Auterion Properties and Third-Party Materials and derivative works thereof are expressly reserved by Auterion and the respective third-party licensors. OEM hereby unconditionally and irrevocably assigns to Auterion its entire right, title, and interest in and to any Intellectual Property Rights that OEM may acquire in or relating to any Auterion Properties (including any rights in derivative works or patent improvements relating thereto), whether acquired by operation of law, contract, assignment, or otherwise. No services provided by Auterion to OEM in connection with the Agreement shall in any case constitute “Work for Hire” or “Hired to Invent”.
(b) All right, title, and interest in and to the OEM Properties, including all Intellectual Property Rights therein and derivative works thereof, are and will remain with OEM or its licensors. Auterion has no right or license with respect to any OEM Properties. Auterion hereby unconditionally and irrevocably assigns to OEM or its designee Auterion’s entire right, title, and interest in and to any Intellectual Property Rights that Auterion may acquire in or relating to any of the OEM Properties (including any rights in derivative works or patent improvements relating thereto), whether acquired by operation of law, contract, assignment, or otherwise.
10.2 OEM Cooperation and Notice of Infringement
OEM shall, during the Term: (a) take all commercially reasonable measures to safeguard Auterion Properties (including all copies thereof) from infringement, misappropriation, theft, misuse, and unauthorized access; (b) at Auterion’s expense, take all such steps as Auterion may reasonably require to assist Auterion in maintaining the validity, enforceability, and Auterion’s ownership of the Intellectual Property Rights in Auterion Properties; (c) promptly notify Auterion in writing if OEM becomes aware of (i) any actual or suspected infringement, misappropriation, or other violation of Auterion’s Intellectual Property Rights in or relating to any Auterion Properties or (ii) any claim that any Auterion Properties, including any production, marketing, distribution, licensing, sale, use, or other disposition of any Software, whether or not as incorporated in the Integrated Products or under Auterion Marks, infringes, misappropriates, or otherwise violates the rights of any third party; and (d) fully cooperate with and assist Auterion in all reasonable ways in the conduct of any Action described in Section 10.3, including having OEM’s employees testify when requested and making available for discovery or trial relevant records, papers, information, samples, specimens, and the like.
10.3 Recovery and Settlement
If Auterion undertakes the enforcement or defense of any Intellectual Property Rights in or relating to any Integrated Products, Auterion may settle such Action, whether by consent order, settlement, or other voluntary final disposition, without the prior written approval of OEM, provided that Auterion shall not settle any such Action in a manner that adversely affects the rights of OEM, including OEM’s rights in and to OEM Properties, without OEM’s prior written consent, which consent shall not be unreasonably withheld or delayed.
11. Representations and Warranties
11.1 Mutual Representations and Warranties
Each Party represents and warrants to the other Party that:
(a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power, and authority to enter into, and to perform its obligations and grant the rights and licenses it grants or is required to grant under, the Agreement;
(c) the execution or other acceptance in any form of the Agreement is carried out by its representative who has been duly authorized by all necessary corporate or organizational action of such Party; and
(d) upon acceptance by both Parties, the Agreement constitutes the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms
11.2 Limited Software Warranty
Auterion warrants only to OEM that for a period of 30 days from the date of delivery to OEM of a master copy of the Software (the “Warranty Period”) the medium on which such master copy is provided will be free of defects in materials and workmanship under normal use. If it is determined that such medium is defective, Auterion will, in Auterion’s sole discretion, repair such master copy or require OEM to return the master copy and any copies thereof and either replace such master copy or refund to OEM any amounts paid by OEM for such returned copy or copies under the Agreement, provided that OEM notifies Auterion in writing of such defect before the expiration of the Warranty Period. The foregoing shall be Auterion’s sole obligation and OEM’s sole remedy for any breach of the warranty set forth in this Section 11.2.
11.3 Limited Auterion Suite Warranty
Auterion warrants only to OEM that Auterion will use reasonable efforts to make Auterion Suite available solely to enable OEM to access Auterion Suite for the purposes set forth in Section 2.4. Auterion Suite may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Auterion or by third-party providers, or because of other causes beyond Auterion’s reasonable control, but Auterion will use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
11.4 DISCLAIMER OF WARRANTIES
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 11.1, 11.2 AND 11.3, ALL AUTERION PROPERTIES AND SERVICES, ALL AUTERION HARDWARE, AND ANY OTHER INFORMATION, MATERIALS, OR WORK PRODUCT PROVIDED BY AUTERION ARE PROVIDED “AS IS” AND “WHERE IS” AND AUTERION HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER, AND AUTERION SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, AUTERION MAKES NO WARRANTY OF ANY KIND THAT ANY SOFTWARE, AUTERION SUITE, AUTERION HARDWARE, SOURCE CODE, REFERENCE DESIGN OR OTHER AUTERION PROPERTIES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET OEM’S OR OTHER PERSONS’ 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. ANY REPRESENTATIONS AND WARRANTIES OF OR RELATING TO THE SOFTWARE ARE MADE DIRECTLY TO CUSTOMERS SOLELY UNDER THE TERMS AND CONDITIONS OF THE EULA OR OTHER AGREEMENTS. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN OEM AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
12.1 Auterion Indemnification
Auterion shall indemnify, defend, and hold harmless OEM from and against any and all Losses incurred by OEM arising out of or relating to any Action by a third-party (other than an Affiliate of OEM) that arise from or relate to any allegation in such Action that the OEM’s exercise of its rights under Section 2 in accordance with the Specifications, Documentation, and the Agreement, infringes a third-party’s Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:
(a) Open-Source Component or other Third-Party Materials;
(b) patent issued on any patent application published in the US after the Effective Date;
(c) incorporation by any Auterion Properties or Auterion Hardware of or into, or any combination, operation, or use of any Auterion Properties or Auterion Hardware in or with any technology (including any software, hardware, firmware, system, or network), material, or Service (other than Integrated Products or OEM Components) not provided by Auterion or specified for OEM’s use in the Specifications or Documentation, unless otherwise expressly permitted by Auterion in writing;
(d) Integrated Products or OEM Components unless, where such Integrated Products or OEM Components incorporate or are combined with any Auterion Properties or Auterion Hardware, such infringement would also have resulted solely from the use of such Auterion Properties or Auterion Hardware without their incorporation into or combination with such Integrated Products or OEM Components;
(e) modification of any Auterion Properties or Auterion Hardware other than: (i) by Auterion; or (ii) with Auterion’s express written approval and in strict accordance with Auterion’s written directions and specifications;
(f) failure to timely implement any Maintenance Release or modification, update, or replacement of any Auterion Properties or Auterion Hardware made available to OEM by Auterion;
(g) use of any Auterion Properties or Auterion Hardware after Auterion’s notice to OEM of such activity’s alleged or actual infringement, misappropriation, or other violation of a third-party’s rights;
(h) negligence, abuse, misapplication, or misuse of any Auterion Properties or Auterion Hardware by or on behalf of OEM, OEM’s Representatives, or a third-party;
(i) use of any Auterion Properties or Auterion Hardware by or on behalf of OEM that is outside the purpose, scope, or manner of use authorized by the Agreement or in any manner contrary to Auterion’s instructions;
(j) events or circumstances outside of Auterion’s commercially reasonable control (including any third-party hardware, software, or system bugs, defects, or malfunctions);
(k) allegation of facts that, if true, would constitute OEM’s breach of any of its representations, warranties, covenants, or obligations under the Agreement; or
(l) act, omission, or other subject matter described in Section 12.2, whether or not the same results in any Action against or Loss by any Auterion Indemnitee.
12.2 OEM Indemnification
OEM shall indemnify, defend, and hold harmless Auterion and its Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and permitted assigns (each, an “Auterion Indemnitee”) from and against any and all Losses incurred by Auterion Indemnitee in connection with any Action by a third-party (other than an Affiliate of an Auterion Indemnitee) that arise from any allegation in such Action of or relating to:
(a) any Integrated Products or OEM Components, provided that, where such Integrated Products or OEM Components incorporate or are combined with any Auterion Properties or Auterion Hardware, such Losses do not arise solely out of or relate solely to Auterion Properties;
(b) Auterion’s compliance with any specifications or directions provided by or on behalf of OEM to the extent prepared without any contribution by Auterion;
(c) any facts that, if true, would constitute OEM’s breach of any of its representations, warranties, covenants, or obligations under the Agreement (including but not limited to the use of Auterion Properties in violation of the Agreement);
(d) OEM’s gross negligence or more culpable act or omission;
(e) the performance of any support or other Services hereunder by or on behalf of Auterion in material compliance with the Agreement; or
(f) any modification of any Auterion Properties.
12.3 Indemnification Procedure
Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to Section 12.1 or Section 12.2, as the case may be. The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 12.3 will not relieve the Indemnitor of its obligations under this Section 12 except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
If any Auterion Property is, or in Auterion’s opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if OEM’s use of any Auterion Property is enjoined or threatened to be enjoined, Auterion may, at its option and sole cost and expense:
(a) obtain the right for OEM to continue to reproduce and use the affected Auterion Property for the purposes materially as contemplated by the Agreement;
(b) modify or replace the relevant Auterion Property, in whole or in part, to seek to make such Auterion Property (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Auterion Properties under the Agreement; or
(c) by written notice to OEM, terminate the licenses or use rights granted to OEM under the Agreement with respect to all or part of the licensed Auterion Properties, and require OEM to immediately cease all reproduction and use of the relevant licensed Auterion Properties (including any Integrated Product incorporating or using any Auterion Properties) and all marketing, distributing, licensing, and sale of the relevant Auterion Properties, or any specified part or feature thereof, provided that, if such termination occurs prior to 2 years after the Effective Date, subject to OEM’s compliance with its post-termination obligations under Section 14.4, OEM shall be entitled to a pro-rata refund of Fees paid for the relevant license or hardware hereunder.
THIS SECTION 12.4 SETS FORTH OEM’S SOLE REMEDIES AND AUTERION’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE AGREEMENT OR ANY SUBJECT MATTER THEREOF (INCLUDING THE SOFTWARE, SOURCE CODE, REFERENCE DESIGN, ANY AUTERION HARDWARE, OR ANY OTHER AUTERION PROPERTIES) INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.
13. Limitations of Liability
13.1 EXCLUSION OF DAMAGES
IN NO EVENT WILL AUTERION OR ANY OF ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR (b) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
13.2 CAP ON MONETARY LIABILITY
IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF AUTERION AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS, UNDER OR IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE AGGREGATE AMOUNT OF FEES PAID OR ACCRUED BY OEM UNDER THE AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO AUTERION’S LIABILITY UNDER THE AGREEMENT. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
14. Term and Termination
14.1 Initial Term
The initial term of the Agreement shall commence on the date when the Parties entered into such Agreement or on the earlier date when these OEM Terms were accepted (the “Effective Date”) and unless terminated earlier pursuant to any of the express provisions of these OEM terms, shall continue until the expiration date set forth in the Agreement, and if no term was set, for one year from the Effective Date (the “Initial Term”).
14.2 Renewal Term
The Agreement will automatically renew for additional successive one-year terms unless it is terminated earlier pursuant to any of the express provisions contained within these OEM Terms or either Party gives the other Party written notice of non-renewal at least 30 days prior to the expiration of the then current term (each a “Renewal Term” and, together with the Initial Term, the “Term”).
Notwithstanding the Term agreed on pursuant to Sections 14.1 or 14.2, and in addition to any other express termination right set forth elsewhere in these OEM Terms:
(a) Auterion may terminate the Agreement, effective on written notice to OEM, if: (i) OEM fails to pay any amount when due hereunder, and such failure continues more than 30 days after Auterion’s delivery of written notice thereof; (ii) there have been 2 or more such payment failures in the preceding 6 month period, regardless of whether any such failures were timely cured; or (iii) OEM breaches any of the terms or conditions of Section 2, Section 3, Section 9, or Section 10;
(b) either Party may terminate the Agreement, effective on written notice to the other Party, if the other Party materially breaches the Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach;
(c) either Party may terminate the Agreement, effective immediately, if the other Party: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (iii) 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; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) 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.
14.4 Effect of Expiration or Termination
Upon any expiration or termination of the Agreement:
(a) all EULA licenses granted to then-existing Customers shall survive in accordance with their terms;
(b) OEM shall immediately cease to represent itself as Auterion’s authorized OEM distributor of the Software, and otherwise desist from all conduct or representations that might lead the public or trade to believe that OEM is authorized by Auterion to sell or distribute the Software or Integrated Products;
(c) subject only to OEM’s continued right to retain and use one copy each of Auterion Properties that have been licensed under the Agreement and any corresponding Specifications, and Documentation solely to perform its support obligations to then-existing Customers under Section 7.1:
(i) all licenses granted to OEM under the Agreement will also expire or terminate;
(ii) OEM shall cease all use of Auterion Properties, and all copies thereof, in whole and in part, including in any production, marketing, distribution, licensing, sale, maintenance, support, or use of the Integrated Products;
(iii) OEM shall within 10 days after such expiration or termination: (a) return to Auterion all documents and tangible materials containing, reflecting, incorporating, or based on Auterion Properties; and (b) permanently erase Auterion Properties from its computer systems;
(iv) Auterion shall within 10 days after such expiration or termination: (a) return to OEM all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on OEM’s Confidential Information; and (b) permanently erase OEM’s Confidential Information from its computer systems; and
(v) Auterion may disable all OEM and Authorized User access to Auterion Materials.
(d) Auterion shall have the right to cancel all outstanding orders for Auterion Hardware (whether or not confirmed by Auterion); provided that Auterion shall refund the net purchase price paid by OEM for such Auterion Hardware, less any prior credit granted to OEM on such Auterion Hardware;
(e) OEM shall at Auterion’s request provide to Auterion a current, complete and accurate list of all Auterion Hardware then in OEM’s inventory, including for each item at least: the SKU or other model identifier, and serial number. Auterion shall have the right (but not the obligation) to repurchase, at its election, any Auterion Hardware in OEM’s inventory (i) if in good merchantable condition, at the price paid by OEM, less any prior credits granted by Auterion on such Auterion Hardware and (ii) otherwise, at a current market value. Auterion shall pay all freight and shipping charges in connection with such repurchase, unless Auterion has terminated the Agreement pursuant to Section 14.3 (a) or (b), in which case OEM shall pay all freight and shipping charges. In the event that the Agreement is terminated by OEM with cause, Auterion may, upon agreement with OEM, repurchase from OEM any and all unsold Auterion Hardware from its inventory at the price paid by OEM provided that it is in food merchantable condition, less any prior credits granted by Auterion on such products. OEM shall pay all freight and shipping charges in connection with such repurchase.
(f) if OEM terminates the Agreement pursuant to Section 14.3(c), Auterion shall refund to OEM any (i) Fees OEM has paid in advance hereunder to the extent, if any, those Fees are not credited to, or exceed the amount credited to, the last payment due Auterion hereunder; and (ii) amounts OEM has paid in advance for Services that Auterion has not performed as of the effective date of termination; and
(g) if Auterion terminates the Agreement pursuant to Section 14.3(b) or Section 14.3(c), all Fees 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 Fees, together with all previously-accrued but not yet paid service charges and reimbursable expenses, within 30 days after the effective date of such termination.
14.5 Surviving Terms
The provisions set forth in the following Sections, and any other rights or obligations of the parties under the Agreement that, by their nature, should survive termination or expiration of the Agreement, will survive any expiration or termination of the Agreement: Section 2, Section 3, Section 7.1, Section 9, Section 10, Section 11, Section 13, Section 14.4, this Section 14.5, and Section 15.
15.1 Further Assurances
Upon a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to the Agreement.
15.2 Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
OEM shall not, without the prior written consent of Auterion, at any time from the Effective Date of the Agreement to 12 months after the termination of the Agreement, solicit or entice away from Auterion or employ or attempt to employ any person who is, or has been, engaged as an employee of Auterion in the provision of the Services or deliverables.
15.4 Public Announcements
Neither Party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to the Agreement or, in the case of OEM, except as expressly permitted under Section 2.9, otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, affiliation, or sponsorship, in each case, without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed.
Except as otherwise expressly set forth in the Agreement, any notice, request, consent, claim, demand, waiver, or other communication under the Agreement have legal effect only if in writing and addressed to a Party as follows (or to such other address or such other person that such addressee Party may designate from time to time in accordance with this Section 15.5:
If to Auterion:
Auterion Inc, 11959 Discovery Ct, Moorpark, CA 93021
Attention: To VP of Finance & Legal of Auterion
If to OEM:
OEM publicly available contact
Notices sent in accordance with this Section 15.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; and (c) when sent, if by facsimile or email, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next Business Day, if sent after the addressee’s normal business hours.
In the 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) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to the Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in the Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices to, the 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 (if and as permitted); 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 the 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 exhibits, schedules, attachments, and appendices referred to herein are an integral part of the Agreement.
The headings in the Agreement are for reference only and do not affect the interpretation of the Agreement.
15.8 Entire Agreement
The Agreement together with the Schedules and Exhibits and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of the Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the provisions of the agreement these OEM Terms, the Exhibits, Schedules and any other documents incorporated herein by reference, the following order of precedence, unless otherwise expressly stated, will govern: (a) first, the Agreement, (b) second, these OEM Terms; (c) third, the exhibits, schedules, attachments, and appendices to these OEM Terms as of the Effective Date.
Neither Party shall assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under the Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the other Party’s prior written consent. Notwithstanding the foregoing, Auterion may assign its rights and obligations hereunder to an Affiliate and OEM’s consent to such assignment is hereby given. No delegation or other transfer will relieve the assigning Party of any of its obligations of performance under the Agreement. Any purported assignment, delegation, or transfer in violation of this Section 15.9 is void. The Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
15.10 Force Majeure
(a) No Breach or Default
In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the Effective Date, national or regional emergency, pandemic, epidemic, or other viral outbreaks, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.
(b) Affected Party Obligations
In the event of any failure or delay caused by a Force Majeure Event, the affected Party shall give prompt written notice to the other Party stating the period of time the occurrence is expected to continue and use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
15.11 No Third-Party Beneficiaries
The Agreement is for the sole benefit of the Parties hereto and their respective permitted 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 the Agreement.
15.12 Amendment and Modification; Waiver
No amendment to or modification of the Agreement shall become 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 is effective unless explicitly set forth in writing and signed by the Party so waiving. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from The Agreement Shall operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
If any provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify the Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
15.14 Governing Law; Submission to Jurisdiction
The Agreement shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision and excluding the UN Convention on Contracts for the International Sale of Goods (CISG). Any legal proceeding arising out of or in connection with the Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the County of Ventura, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such proceeding. Service of process, summons, notice, or other document by mail to such Party’s address set forth herein shall be effective service of process for any such proceeding.
15.15 Waiver of Jury Trial
Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to the Agreement or the transactions contemplated thereby.
15.16 Equitable Relief
Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 9 or Section 11 or, in the case of OEM, OEM’s obligations under Section 2.9, Section 3, Section 5, or Section 10, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that the other Party 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 security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are in addition to all other remedies that may be available.
The 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 is deemed to have the same legal effect as delivery of an original signed copy of the Agreement.
EXHIBIT 1: DEFINITIONS
The following defined terms are used in the OEM Terms. References to Sections are to sections of these OEM Terms.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, by ownership of more than 50% of the voting securities of a Person, by contract, or otherwise.
“Agreement” has the meaning set forth in the preamble.
“Auterion Hardware” means any computer, device, board, processor, or other part provided by Auterion to OEM under the Agreement.
“Auterion Indemnitee” has the meaning set forth in Section 12.2.
“Auterion Marks” means the Marks listed in Auterion’s word marks that include but are not limited to: Auterion, Skynode, Skynav.
“Auterion Properties” means the Software, Auterion Suite, Specifications, Auterion Marks, Auterion Systems, Auterion’s Confidential Information, APIs (application programming interfaces), Reference Designs, Source Code, Auterion Hardware designs, and other technologies, information (including any Customer Information), and materials provided by Auterion to OEM (i) to enable OEM to develop, make or have made, market, distribute, or license, or provide maintenance, support, or other Services for, Integrated Products and (ii) in connection with the Auterion Suite or that otherwise comprise or relate to the Auterion Suite or Auterion Systems or information and data derived from Auterion’s monitoring of OEM’s access to the Auterion Suite, including Resultant Data.
“Auterion Suite” means Auterion’s software-as-a-service (“SaaS”) solution(s) including Auterion Suite (OEM dashboard), OTA Software updates and Cloud APIs.
“Auterion Suite Documentation” means any manuals, instructions, or other documents or materials that Auterion provides or makes available to OEM in any form or medium and that describe the functionality, components, features, or requirements of the Suite, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
“Auterion Systems” means the information technology infrastructure used by or on behalf of Auterion in performing the Auterion Suite, including all software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by or through the use of third-party services.
“Authorized User” means each OEM’s employees, consultants, contractors, and agents who are authorized by OEM to access and use the Auterion Suite under the rights granted to OEM pursuant to the Agreement.
“Business Day” means a day other than a Saturday, Sunday, or other day on which commercial banks in Ventura County, California are authorized or required by Law to be closed for business.
“Certification Standards” has the meaning set forth in Section 5.5.
“Confidential Information” has the meaning set forth in Section 9.1.
“Customer” means any natural or legal person that purchases or licenses one or more Integrated Products from OEM for its own use and not for transfer or resale of any kind.
“Customer Information” means any information collected, received, processed, or maintained by or on behalf of OEM from or relating to any Customer in connection with the Integrated Products, including the identification of the Integrated Products distributed to or used by or on behalf of the Customer and the Integrated Products’ registration information and serial numbers, and the Customer’s Integrated Product transaction history and satisfaction data, and related data analytics.
“Derivative Work” means any modifications, enhancements, improvements, translations or other alterations to the Software, Reference Design or any other Intellectual Property Rights.
“Disclosing Party” has the meaning set forth in Section 9.1.
“Documentation” means the Auterion Suite Documentation and the Software Documentation.
“Effective Date” has the meaning set forth in Section 14.
“End User” means a Customer or a Person that uses one or more Integrated Products for or on behalf of a Customer.
“Equipment” means any and all equipment and ancillary services needed to connect to, access, or otherwise use the Auterion Suite, including modem, hardware, servers, software, operating systems, networking, web servers, and the like.
“EULA” means Auterion’s then current end-user software license agreement setting forth the terms and conditions of a Customer’s permitted use of one or more Software incorporated in or integrated with an Integrated Product.
“Exhibits” means the exhibits referenced herein and annexed hereto.
“Fees” has the meaning set forth in Section 8.1.
“Force Majeure Event” has the meaning set forth in Section 15.9.
”Harmful Code” means any software, hardware, or other technology, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby; or (b) prevent OEM or any Authorized User from accessing or using the Auterion Suite or Auterion Systems as intended by the Agreement. Harmful Code does not include any technology deployed by Auterion to suspend or terminate the Auterion Suite pursuant to Section 2.11.
“Indemnitee” has the meaning set forth in Section 12.3.
“Indemnitor” has the meaning set forth in Section 12.3.
“Initial Term” has the meaning set forth in Section 14.1.
“Integrated Products” means any and all products made by OEM that incorporate or include directly or indirectly one or more OEM Components and one or more Software or Auterion Hardware.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights Laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“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.
“Loss” or “Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Maintenance Release” means any update, upgrade, release, or other adaptation or modification of Software, including any updated Software Documentation, that Auterion may provide to OEM from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Software, but does not include any New Version.
“Mark” means any trademark, service mark, trade name, logo, domain name, or other indicator of source, affiliation, or sponsorship, whether registered or unregistered.
“New Version” means any new version of the Software that Auterion may from time to time introduce and market generally as distinct software (as may be indicated by Auterion’s designation of a new version number), and which Auterion may make available to Licensee at an additional cost under a separate written agreement.
“Object Code” means the software, substantially or entirely in binary form, which is intended to be directly executable by a computer after suitable processing and linking but without the intervening steps of compilation or assembly.
“OEM” has the meaning set forth in the preamble.
“OEM Components” means any and all components of the Integrated Products other than Software.
“OEM Properties” means software developed by OEM, or developed by third parties and licensed to OEM, in each case independently from and without use of the Software (excluding Open Source Components), OEM marks, OEM Systems, OEM’s Confidential Information, OEM’s APIs (application programming interfaces), and other technologies, information (excluding any Customer Information), and materials provided by OEM to Auterion in connection with the Agreement (except Auterion Properties).
“OEM Systems” means OEM’s information technology infrastructure, including software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by OEM or through the use of third-party services.
“Open-Source Component” means any software component that is provided under the Agreement as part of the Software that is subject to any open source license agreement, including any software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative.
“Permitted Purpose” has the meaning set forth in Sections 2.1., 2.2 and 2.3.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Products” means Software, OEM Components, and Integrated Products in any form or medium.
“Receiving Party” has the meaning set forth in Section 9.1.
“Reference Design” means the design files, schematics, technical documentation, procurement information, and all associated supporting data and material.
“Renewal Term” has the meaning set forth in Section 14.2.
“Reporting Period” has the meaning set forth in Section 8.5(a).
“Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors, and legal advisors.
”Resultant Data” means data and information related to use of the Auterion Suite by OEM and its Authorized Users that is used by Auterion in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Auterion Suite.
“Services” any services performed by Auterion to OEM and/or to the OEM’s Affiliates.
“Software” means the object code version of Auterion software products that may be integrated with the Customer product and can include AuterionOS, Auterion Enterprise PX4, Auterion Mission Control, QGC Gov, Auterion’s on board and mobile Software Development Kit and including all Derivative Work thereof, any Maintenance Releases and all related Software Documentation.
“Source Code” means computer software and code, in a form other than Object Code form of Software.
“Specifications” means the technical specifications for the Software and the Auterion Suite provided by Auterion to OEM. Including Auterion’s Software Stack of the latest version that is compatible with Skynode hardware, such as: Skynode OEM, Skynode Enterprise, Skynode Government, Skynode RTA, Skynav as may be modified from time to time by the parties’ written agreement.
“Software Documentation” means Auterion’s user manuals, handbooks, and installation guides relating to the Software/end user documentation relating to the Software that Auterion provides or generally makes available to End Users which describe the functionality, components, features, or requirements of the Software, including any aspect of the installation, configuration, integration, operation, or use of the Software.
“Taxes” has the meaning set forth in Section 8.4.
“Term” has the meaning set forth in Section 14.2.
“Territory” means the whole world excluding any countries sanctioned by the respective local laws of Auterion’s places of business.
“Third-Party Materials” means, other than the Integrated Products and OEM Components, all materials and information in any form or medium, including any Open-Source Components or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Software or the Auterion Suite, that are not proprietary to Auterion.
“Warranty Period” has the meaning set forth in Section 11.2.
“Work Materials” means any information materials or materials components that may be transferred by the Parties to each other in the process of performing Service obligations.