TERMS AND CONDITIONS OF SALE
REV: APRIL 30, 2018
These Terms & Conditions of Sale (“Agreement”) govern purchase of products (the “Products”) from Ouster, a Delaware Corporation, having a place of business at 350 Treat Ave., San Francisco, CA 94110 (“Ouster”).
1. Effect of Purchase Orders and Other Documents. Ouster’s quotations and Ouster’s acceptance of any purchase order from buyer (“Buyer”) are expressly limited to, and expressly made conditional on, Buyer’s acceptance of this Agreement. This Agreement represents the sole and exclusive terms and conditions upon which Ouster offers to sell Products to Buyer. Any different or additional terms are deemed to be material alterations hereto. Ouster objects to any different or additional terms and none of Ouster’s commencement, performance, or delivery shall be deemed or construed as acceptance of Buyer’s additional or different terms or conditions.
2. Acceptance of Orders. All orders by Buyer are subject to Ouster’s acceptance in writing in Ouster’s discretion. In the event an order is a blanket order or does not specify quantity, or Buyer provides Ouster forecasts, estimates or cancelable orders, Ouster has no obligation thereunder until Ouster accepts an order for a specific quantity. Ouster may make partial or installment delivery of Products hereunder, and Ouster may invoice Buyer for and Buyer shall pay for such Products in the partial or installment delivery in accordance with the terms of this Agreement.
3. Shipment and Acceptance. Ouster will ship the Products sold hereunder Ex-Works (EXW) Ouster. Buyer is responsible for all freight, handling, loading, insurance and other transportation charges. Ouster may select which carrier Buyer will use to ship the Products, and such carrier shall be deemed to act as Buyer’s agent, and the cost of such carrier shall remain Buyer’s responsibility. Products shall be deemed accepted upon delivery, but shall be subject to the warranty set forth in Section 13 (Limited Warranty). Ouster shall use commercially reasonable efforts to ship the Products in accordance with the estimated shipment date provided in Ouster’s acknowledgement. However, Ouster’s failure to ship on the estimated shipment date shall not be deemed a breach of this Agreement and Ouster shall have no liability for the delay.
4. Title and Risk of Loss. Title to the Products sold hereunder passes to Buyer when such Products are presented to Buyer for shipment, from which point Buyer is responsible for all risk of loss or damage.
5. Prices and Payment. Ouster may change prices for the respective Products by informing Buyer in writing, provided that the new prices shall apply only to purchase orders submitted after Buyer’s receipt of the new pricing.
6. Payment. Terms of payment are net thirty (30) days from the day of Buyer’s receipt of the Products, subject to initial and continuing credit approval. Ouster may, at any time and in its sole discretion, limit or cancel the credit of Buyer as to time and amounts, and as a consequence, may require payment in cash before delivery of any unfilled portion of an order. All payments shall be made in United States Dollars by bank wire transfer in immediately available funds a bank account designated by Ouster.
7. Late Payment. All late payments shall be subject to interest calculated at the rate of one and one‑half percent (1.5%) per month or the maximum allowable by law, whichever is less. This provision shall in no way limit any other rights or remedies that may otherwise be available to Ouster.
8. Taxes. Prices are exclusive of any sales tax, value-added tax, fee, duty or other governmental charge, however designated. All such taxes or duties shall be paid by Buyer and any such taxes or duties required to be paid or collected by Ouster shall be paid by Buyer to Ouster unless Buyer provides Ouster with a valid certificate of exemption.
9. Embedded Software. The Products may include software or firmware incorporated into or provided in connection with such Products (“Embedded Software”). In the event Ouster provides a separate written license agreement for the Embedded Software, such license agreement shall apply to the Embedded Software. Otherwise, Ouster hereby grants Buyer a limited, non‑exclusive license to use the Embedded Software solely as embedded in the Product, solely in object code form and solely in accordance with any instructions from Ouster regarding the use of such Product, and subject to this Agreement. Any Embedded Software is subject to copyright laws and international copyright treaties and is the intellectual property of Ouster or its licensors. The Embedded Software is licensed not sold, and the license to the Embedded Software is only the express, written license agreement for such software provided by Ouster. Such software license is personal to Buyer, is non‑assignable and terminates in the event that Buyer returns or otherwise disposes of the Product.
10. Intellectual Property Rights and Confidential Information. Ouster shall retain all intellectual property rights covering or embodied in the Products and any improvements thereto. In the event that Buyer acquires any rights in or to any intellectual property, or any improvements thereto, covering the Products or improvements to the Products, Buyer shall assign and hereby assigns, all right, title and interest in such improvements and intellectual property rights to Ouster. Ouster shall have the right to integrate and use all improvements and associated intellectual property rights in the Products without restriction. All intellectual property rights not expressly granted to Buyer are expressly reserved by Ouster. Buyer receives no right or license, by implication, estoppel or otherwise, to any software, technology or intellectual property rights not embodied in the Products, even if such other software, technology or intellectual property rights are useful or necessary in connection with the Products. Buyer shall (i) treat as confidential information of Ouster any non-public information received or learned by Buyer hereunder or otherwise received or learned from Ouster, including information regarding the non-public aspects of the Products and Embedded Software and Ouster’s business plans and technology, (ii) reasonably protect such information from disclosure and (iii) not use or disclose such information other than as expressly authorized by Ouster in writing.
11. No Reverse Engineering; Internal Use Only. Buyer agrees not to, nor permit any third party to: (i) reverse‑engineer any Product (including any software in any Product); (ii) disassemble any Product, including by removing any software, components or parts of components from such Product or its respective housings other than for maintenance in accordance with Ouster’s instructions; (iii) decompile, disassemble or otherwise attempt to derive the source code or logic underlying any Product including any software therein; (iv) copy or make any reproduction of any Product in whole or in part through mechanical or other means; (v) alter any software in any Product; (vi) inspect or analyze any Product other than for use in accordance with its documentation; (vii) use any Product in any manner other than for personal use (if Buyer is an individual) or for internal business purposes (if Buyer is an entity or organization) (which may include use by Buyer’s employees and agents in connection with Buyer’s services for Buyer’s customers) or (vii) otherwise sell, provide, or otherwise dispose of any Product to any third party or permit any third party access to any Product or facilitate or permit any third party to do any of the foregoing without Ouster’s prior written approval.
12. Resale Requirements. Buyer agrees not to, nor permit any third party to, sell, provide, or otherwise dispose of any Product to any third party without Ouster’s written approval. If Ouster provides such approval, then unless otherwise expressly permitted in Ouster’s approval, Buyer may provide the Product only as an Integrated Product (as defined below) and in each case only to its purchasers who acquire such Products from Buyer for their own internal use and not for resale, transfer or distribution to third parties (“End User(s)”), and Buyer shall cause each End User to execute, concurrently with the sale of the Product, a Manufacturer’s Terms of Sale for End Users in the form of the attached Attachment A (Manufacturer’s Terms of Sale for End Users) [provided separately offline]. “Integrated Product” means product that contains substantial material and technology in addition to the Product, in which the Product is physically and permanently integrated only as a subcomponent and not the primary aspect or functionality of such product.
13. Proprietary Notices. Buyer shall not remove any copyright, patent, trademark or other proprietary notices, markings or legends from the Products.
14. Limited Warranty. Ouster warrants only to Buyer, subject to the limitations and disclaimers of this Agreement, that the Products: at the time of their purchase, will conform to Ouster’s specifications for the Products in all material respects, if any, and as they may thereafter be amended or modified by Ouster. The warranty period for Products is twelve (12) months from the date of initial purchase. Ouster retains the right to change the dimensions, composition, design, performance color and appearance of the Products without liability if, in its judgment, the change is non‑material. Products that are manufactured by Ouster may include new parts or serviceable used parts that are functionally equivalent to new parts. Ouster may, in its sole discretion, also rely on any generally accepted industry standards. Ouster’s warranties are conditioned upon: (i) Buyer’s compliance with this Agreement with Ouster; (ii) installation, maintenance and normal use in conformity with specifications and other instructions furnished by Ouster from time to time, if any, and the Product has not been used in a manner or purpose for which the it was not designed or intended by Ouster; (iii) no labels or tamper mechanism having been removed; and (iv) the Products not having been subjected to misuse, neglect or accident, or to alteration, improper installation, repair, improper testing, corrosion (e.g., from water quality, materials used and air) or mineral deposits, fungus or other contamination, ordinary wear and tear or items not supplied by Ouster in any respect which, in the judgment of Ouster, adversely affects the condition or operation of the Products. The Products have not been fully tested in the field or approved for use in connection with a vehicle having the ability or being developed to have the ability to operate at least in part without operation by a person, having a driver assistance system (e.g., ADAS) or any other related application (“Autonomous Usage”). Any such Autonomous Usage is done so at Buyer’s sole risk and liability.
15. No Other Warranties. THE LIMITED EXPRESS WARRANTIES IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND OUSTER DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO ANY IMPLIED OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON‑INFRINGEMENT. NOTWITHSTANDING ANYTHING SET FORTH IN THIS AGREEMENT, OUSTER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, RELATING TO ANY AND ALL AUTONOMOUS USAGE. Ouster does not warrant that it or the Products are in compliance with any industry standards, guidelines, or procedures, or with the requirements of any safety or environmental code or regulation of any federal, state, municipality or other jurisdiction. Buyer affirms that it has not relied upon Ouster’s skill or judgment to select or furnish Products for any particular purpose beyond the specific express warranties in this Agreement.
16. Limitation of Remedies. Ouster’s responsibility, and the sole and exclusive remedy of Buyer under the warranties or any other provision in this Agreement, is, at Ouster’s option and subject to the terms hereof, to repair, replace (without any additional charge and shipped to Buyer FOB Ouster’s plant or Ouster’s distributor in Ouster’s discretion), or to keep the Products and refund or credit Buyer in the amount of the purchase price of any defective or nonconforming Products that are returned or offered to be returned by Buyer to Ouster (with transportation charges prepaid by Buyer, to be credited or refunded after verification of defectiveness or nonconformity of returned Products) during the warranty period, provided that (i) Ouster is promptly notified in writing with a detailed explanation of any alleged deficiencies upon discovery by Buyer that the Products fail to conform to the applicable specifications; and (ii) Ouster’s examination of the Products that shall disclose to Ouster’s satisfaction that such Products are defective or nonconforming with respect to the applicable specifications. Buyer’s remedies shall be limited exclusively to those provided in this Section 15 (Limitation of Remedies). Notwithstanding anything set forth in this Agreement, and to the extent permitted by law, in no event shall Ouster be responsible or liable to Buyer for any loss of use, revenue or anticipated profits, or for any incidental, consequential, indirect, special, contingent or punitive damages in connection with any breach of warranty or other breach of Ouster’s obligations under this Agreement. Ouster’s aggregate liability for all damages or claims arising out of or relating to any Products shall in no event exceed the amount Buyer Paid for the Product(s) giving rise to the claim or damages. Buyer waives any causes of action or theories of liability, including, but not limited to, those arising under contract, tort, strict liability, product liability, statutes, or otherwise, except as specifically provided under applicable law. The replacement or repair of Products by Ouster does not give rise to any new warranty except the warranty period provided for herein shall be extended by the length of any period in which the defective or non‑conforming Products are in possession of Ouster.
17. Applicable Law. The warranty disclaimers and limitations of liability set forth in this Agreement shall not apply to the extent prohibited by applicable law, in which case the disclaimer or limitation shall be modified to disclaim and/or limit in accordance with applicable law. Without limiting the foregoing, to the extent required by applicable law, the foregoing limitations shall not apply to claims due to fraud, bodily injury, or death.
18. Buyer’s Indemnification Obligations. Buyer shall indemnify, defend and hold harmless Ouster, and Ouster’s parent, subsidiary and affiliate companies, and their respective shareholders, officers, directors, employees, representatives and agents, from and against any and all third party claims, damages, and expenses (including reasonable attorney fees) under theories of tort, product liability, negligence (ordinary or gross), warranty, contract, statute or otherwise arising out of the use, storage, sale, processing or other disposition of the Products, supplies or materials used in connection with the Products, or parts manufactured with the Products, (i) if the action or inaction of Buyer or its employees, customers or agents, or Buyer’s design specifications, were a material or proximate cause of injuries or damages giving rise to claims against Ouster, (ii) claims, damages and expenses relating in any way to Autonomous Usage, and/or (iii) if the claim asserted is inconsistent with the limitation of warranties, limitation of liability and/or limitation of remedies set forth in this Agreement.
19. Assignment. This Agreement shall not be assignable by either party without the prior written consent of the other party hereto, except that either party may assign this Agreement without the other party’s consent in connection with a merger, acquisition, change of control or sale of substantially all of the assets of such party.
20. Governing Law; Jurisdiction; Venue. This Agreement and any dispute arising from the performance or breach hereof shall be governed by, construed and enforced in accordance with, the laws of the State of California, United States of America, without reference to conflicts of laws. The U.N. Convention on the International Sale of Goods shall not apply. The parties hereby submit to the exclusive jurisdiction and venue of the state and federal courts in San Francisco, California, United States of America, and the parties consent to the personal and exclusive jurisdiction of these courts for any dispute or claim arising out of, in relation to, or in connection with this Agreement, and any subsequent amendments to this Agreement, including without limitation the interpretation, making, performance, breach or termination thereof. Notwithstanding the foregoing, either party may apply to any court or administrative body of competent jurisdiction for a temporary restraining order, preliminary injunction or other interim or conservatory relief to protect its intellectual property or proprietary rights, without breach of this Section 19 (Governing Law; Jurisdiction; Venue) and without any abridgment of the powers of the courts set forth above.
21. Force Majeure. Nonperformance of any party (other than with respect to payment obligations) shall be excused to the extent that performance is rendered impossible by strike, fire, earthquake, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the nonperforming party.
22. No Implied Waivers; Rights Cumulative. No failure on the part of Ouster or Buyer to exercise and no delay in exercising any right under this Agreement, or provided by statute or at law or in equity or otherwise, shall impair, prejudice or constitute a waiver of any such right, nor shall any partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right.
23. Independent Contractors. Nothing contained in this Agreement is intended implicitly, or is to be construed, to constitute Ouster and Buyer as partners in the legal sense. No party hereto shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of any other party or to bind any other party to any contract, agreement or undertaking with any third party.
24. Modification; Waivers; Severability. No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing signed by all parties hereto. No provision of this Agreement shall be varied, contradicted or explained by any oral agreement, course of dealing or performance, or any other matter not set forth in an agreement in writing and signed by the parties. If any provision of this Agreement should be held invalid, illegal or unenforceable in any jurisdiction, the parties shall negotiate in good faith a valid, legal and enforceable substitute provision that most nearly reflects the original intent of the parties and all other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in order to carry out the intentions of the parties hereto as nearly as may be possible. Such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of such provision in any other jurisdiction.
25. Export Laws and Government Approval. Buyer agrees to comply fully with all laws and regulations of the United States and other countries (“Export Laws”) and shall assure that the Products are not either: (i) exported, directly or indirectly, in violation of Export Laws, either to any countries that are subject to U.S. export restrictions or to any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government; or (ii) intended to be used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. Notwithstanding anything to the contrary contained herein, all obligations of Ouster and Buyer are subject to obtaining all necessary approvals required by the applicable agencies of the governments of the United States and foreign jurisdictions. Ouster and Buyer shall cooperate with each other and shall provide assistance to the other as reasonably necessary to obtain any required approvals.
26. Entire Agreement. This Agreement between the parties constitutes the entire agreement, with respect to the subject matter hereof, and supersedes all prior or contemporaneous understandings or agreements, whether written or oral, between Ouster and Buyer with respect to such subject matter.