TERMS OF SALE
Last Modified: November 22nd, 2019
These Terms of Sale (this “Agreement”) govern the purchase of products (“Products”) from Ouster, Inc., a Delaware corporation having a principal place of business at 350 Treat Avenue, San Francisco, California 94110 (“Ouster”) by any person or entity identified in an order as the purchaser of Products (“Buyer”).
a) Order and Acceptance. Buyer may submit one or more orders hereunder to Ouster for the purchase of Products. All orders by Buyer are subject to Ouster’s acceptance in writing, acceptance to be given at Ouster’s sole discretion. If Buyer provides Ouster with forecasts or estimates of anticipated requirements for Products, such forecasts and estimates are deemed to be for informational purposes only, and neither party has any obligation thereunder unless and until Ouster accepts an order for a specific quantity of Products.
b) Cancellation and Reschedule. Once accepted, each order is non-cancelable by Buyer and may not be rescheduled by Buyer except with Ouster's written consent. If Ouster has reasonable concerns about Buyer’s ability to pay for any Products, Ouster may require payment in full in advance of shipment, and if Ouster does not receive such payment in advance, Ouster may cancel the relevant order.
c) Effects of Additional and Conflicting Terms. This Agreement will prevail over any of Buyer’s additional or conflicting terms or conditions of any purchase order or other electronic or physical ordering document provided by Buyer in connection with Buyer’s ordering of any Products from Ouster. Notwithstanding Ouster’s acceptance of any order from Buyer, Ouster hereby gives Buyer notice of Ouster’s objection to and rejection of any conflicting or additional terms in any such order.
2) Delivery and Acceptance.
a) Delivery. Ouster will ship the Products Ex-Works (EXW-Incoterms 2010) from Ouster’s distribution facility. Title to the Products passes to Buyer when the Products are presented to the carrier for shipment, from which point Buyer is responsible for all risk of loss or damage. Unless a carrier is specified in Buyer’s accepted order, Ouster may select the carrier. Ouster will use commercially reasonable efforts to ship the Products in accordance with the estimated shipment date provided in Ouster’s acceptance of Buyer’s order; provided, however, that Ouster’s failure to ship on the estimated shipment date will not be deemed a breach of this Agreement, and Ouster will have no liability for any delay in shipment. Unless otherwise specified in an accepted order, Ouster may make partial or installment delivery of Products.
b) Acceptance. Products will be deemed accepted upon delivery; provided that, Buyer may reject delivered Products within two (2) business days after their delivery if there are obvious errors (e.g. visible defects not caused by damage in shipment, delivery of the wrong Products , or excess quantities of Products ) by providing Ouster with written notice of the error and returning the defective Products to Ouster using the procedure set forth in Section 8. For the avoidance of doubt, Buyer’s acceptance of Products under this Section 2(b) will not relieve Ouster of its limited warranty obligations under Section 8.
3) Prices and Payment.
a) Prices. The prices for all Products will be Ouster’s list prices for such Products on the date of Ouster's receipt of the order, subject to any discounts to which Ouster agrees in writing on an order-by-order basis. All prices are quoted in United States Dollars. Ouster may change its list prices for the Products; provided that the new prices will apply only to purchase orders submitted after the date specified in the notice. Buyer is responsible for all freight, handling, loading, insurance and other transportation charges which, if paid by Ouster, will be separately stated on the invoice and reimbursed by Buyer.
b) Payment. Payment terms are net 30 days from the date of invoice (which may not be dated prior to the day the Products are delivered to the carrier), subject to initial and continuing credit approval. All payments will be made in United States Dollars by bank wire transfer in immediately available funds to a bank account designated by Ouster, or by such other payment method as the parties may agree upon in writing. All late payments will be subject to interest calculated at the rate of one and a half percent (1½%) per month or the maximum allowable by law, whichever is less.
c) Taxes. Prices are exclusive of any sales tax, value-added tax, excise taxes, consumption taxes, tariffs, duties, and other governmental charges, however designated, except for taxes on Ouster’s net income. All such taxes or duties will be paid by Buyer and any such taxes or duties required to be paid or collected by Ouster will be separately stated on the invoice and paid by Buyer to Ouster unless Buyer provides Ouster with a valid certificate of exemption.
4) Intellectual Property Rights.
a) No Reverse Engineering. Buyer acknowledges that all internal hardware, software, and functionality not readily visible from external view of the Product constitute trade secrets or other intellectual property of Ouster and, accordingly, Buyer agrees not to: (i) reverse engineer any Product, including any software embedded in any Product (“Embedded Software”); (ii) disassemble any Product, including by removing any software, components or parts of components from such Product or its respective housings; (iii) decompile, disassemble or otherwise attempt to derive the source code, algorithms, models, designs, or architecture any Product (including any Embedded Software); (iv) copy or make any reproduction of any Product or any part of any Product (including any Embedded Software); (v) alter any Embedded Software, or otherwise change the software of any Product other than in accordance with Ouster’s instructions for updating such software; or (vi) facilitate or permit any third party (including any Evaluators) to do any of the foregoing without Ouster’s prior written approval, such approval to be separate from any acceptance from any order. The foregoing restrictions do not apply to the extent that such restrictions are prohibited by applicable law notwithstanding the terms of this Agreement.
b) Reservation of Rights. Ouster and/or its licensors retain all intellectual property rights covering or embodied in the Products (including any Embedded Software). Buyer receives no right or license, by implication, estoppel or otherwise, to any intellectual property rights under this Agreement. Buyer will not remove any copyright, patent, trademark or other proprietary notices, markings or legends from the Products.
c) Feedback. In the event that Buyer provides any suggestions or feedback regarding the Products, Buyer hereby grants to Ouster a non-exclusive, perpetual, irrevocable license to use and exploit all such suggestions or feedback in connection with Ouster's products and services without restriction.
d) Open Source Software. The Products may contain certain Embedded Software that is licensed under an open source license. Nothing in this Agreement is intended to limit Buyer’s rights to such open source software under the applicable open source licenses.
5) Confidential Information. If there is an existing non-disclosure agreement in place between Ouster and Buyer that covers the information exchanged in connection with this Agreement, that existing agreement will control and supersede the remainder of this Section 5. Otherwise, Buyer will: (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 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. The foregoing obligations will not apply to any information that Buyer can demonstrate is or becomes generally available to the public without breach of this Agreement, is provided to Buyer by a third party that does not owe a duty of confidentiality with respect to such information, is already known to Buyer, without a duty of confidentiality, prior to disclosure to Buyer by Ouster, or is independently developed by Buyer without use of or reference to Ouster’s confidential information.
a) Integrated Products Only. Buyer agrees not to, or permit any third party to, sell, provide, or otherwise dispose of any Product to any third party without Ouster’s written approval, except that Buyer may resell, provide, or otherwise dispose of any Product to third parties as part of Buyer’s Integrated Product. “Integrated Product” means Buyer’s product that contains substantial material and technology in addition to the Product, in which the Product is physically integrated only as a subcomponent and not the primary aspect or functionality of such product.
b) Conditions to Resale. As a condition of the resale right set forth above: (i) Buyer's terms and conditions of sale for such Integrated Products will incorporate warranty disclaimers, limitations of liability and reverse engineering provisions in favor of Ouster (who may be referred to as Buyer's supplier) that are at least as protective as the applicable terms of this Agreement, and (ii) Buyer understands and agrees that Buyer is deemed the “producer” of all Integrated Products under any laws, regulations or other statutory scheme providing for the marking, collection, recycling and/or disposal of electrical and electronic equipment in any jurisdiction whatsoever (for example national laws implementing EC Directive 2002/96 on waste electrical and electronic equipment, as amended), and will be solely responsible for complying with all such applicable laws, rules and regulations. In the event of an actual or suspected breach of the Buyer’s terms of sale for any Integrated Products where such breach relates to the Products, Buyer will: (a) notify Ouster of the actual or suspected breach, the notice to include the name of the alleged violator and a copy of the applicable terms of sale and (b) use its best efforts to remedy any actual or suspected breach.
7) Evaluation and Integration.
a) Evaluator Access. Notwithstanding Section 6, Buyer may provide the Products, on a standalone basis, to a third party (an “Evaluator”) as required for the Evaluator to internally evaluate the Products and/or assist in the development of the Buyer’s Integrated Products.
b) Conditions to Evaluation and Integration. As a condition of the evaluation and integration right set forth in Section 7(a) above: (i) the Evaluator may only use the Products for its internal evaluation of the Products and/or for the development of the Buyer’s Integrated Products; (ii) the Buyer must enter into an enforceable agreement for the evaluation and/or integration with the Evaluator that contains confidentiality, warranty disclaimers, limitations of liability, and reverse engineering provisions as protective of Ouster as the provisions contained in this Agreement (an "Integration Agreement"); (iii) the Buyer may not charge the Evaluator for its possession and/or use of the Products, other than for any costs for the transportation of the Products incurred in connection with the integration, which Buyer may charge only at cost; (iv) the Evaluator may only take possession of the Products for the earliest to occur of (w) the expiration or termination of the Integration Agreement, (x) the completion of the evaluation, (y) the development of Integrated Products or (z) the passage of three (3) months from the date of delivery of the Products to Evaluator (the period from the delivery of the Products to the first to occur of the foregoing events, the “Integration Period”); (v) the Evaluator is required to return the Products to Buyer upon the expiration or termination of the Integration Period; and (vi) notwithstanding anything to the contrary herein, no competitor of Ouster, as determined by Ouster at its sole discretion, may be an Evaluator and may be provided Products by or on behalf of the Buyer. In the event of an actual or suspected breach of this Agreement or the Integration Agreement, Buyer will notify Ouster of the actual or suspected breach, the notice to include the name of the Evaluator and a copy of the applicable Integration Agreement. Buyer will use its best efforts to remedy any actual or suspected breach; provided that, Buyer will, at all times, remain responsible to Ouster for any breach of this Agreement and the Integration Agreement by it or its Evaluators.
8) Warranty and Disclaimer.
a) Limited Warranty. Ouster warrants only to Buyer that the Products, at the time of their delivery to Buyer and for 12 months thereafter, will conform to Ouster’s specifications for the Products (found in the user guide provided with the Products) in all material respects and be free from defects in materials and workmanship. Ouster retains the right to change the specifications for the Products, including their dimensions, composition, design, performance, color and appearance, and to provide updates for Embedded Software, provided that, for purposes of the limited warranty stated above, the specifications applicable to any Products ordered hereunder will be the specifications in place at the time of manufacture. Products that are manufactured by Ouster may include new parts or serviceable used parts that are functionally equivalent to new parts. The foregoing limited warranty does not apply to damage caused by ordinary wear and tear, and is conditioned upon (i) installation, maintenance and normal use of the Products in conformity with the specifications and other instructions furnished by Ouster from time to time, and in a manner and for purposes for which the Products were designed and intended by Ouster; (ii) no labels or tamper-resistant mechanisms having been removed from the Products; and (iii) the Products not having been subjected to misuse, neglect, accident, alteration, improper installation, repair not authorized by Ouster, or combination with items not supplied by Ouster which, in the reasonable judgment of Ouster, adversely affect the condition or operation of the Products. This warranty is non-transferable.
b) Limited Remedies. Ouster will repair or replace (without any additional charge) any Products that do not conform to the warranty set forth in Section 8(a), or refund or credit to Buyer the amount of the purchase price of such defective or nonconforming Products, in each case upon their return to Ouster during the warranty period stated above (with transportation charges prepaid by Buyer, to be credited or refunded after verification of defectiveness or nonconformity of returned Products), provided that (i) Ouster is promptly notified in writing with a detailed explanation of the alleged deficiencies upon Buyer’s discovery of such deficiencies; and (ii) Ouster’s examination of the Products confirms that such Products are defective or nonconforming with respect to the applicable specifications. Buyer must return the defective or nonconforming Products to Ouster, even if Ouster, at its option, delivers replacement Products in advance of such return; otherwise Buyer must pay Ouster the full purchase price for such replacement Products. Buyer’s remedies for breach of warranty with respect to the Products will be limited exclusively to those provided in this Section 8(b). The warranty period for replaced Products will be the remainder of the original warranty period or sixty (60) days, whichever is longer.
c) No Other Warranties. THE EXPRESS LIMITED WARRANTY IN SECTION 8(a) IS IN LIEU OF, AND OUSTER AND ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM, ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE PRODUCTS (INCLUDING ANY EMBEDDED SOFTWARE), INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON INFRINGEMENT, SATISFACTORY QUALITY, AND THEIR ANALOGS UNDER THE LAWS OF ANY JURISDICTION. THESE DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9) Limitations of Liability.
a) No Consequential Damages; Cap. IN NO EVENT SHALL OUSTER OR ITS SUPPLIERS OR LICENSORS BE RESPONSIBLE OR LIABLE TO THE BUYER FOR ANY LOSS OF USE, REVENUE, OR ANTICIPATED PROFITS, COST OF PROCUREMENT OF SUBSTITUTE GOODS, OR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, CONTINGENT OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE PRODUCTS OR THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF OUSTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUSTER’S AGGREGATE LIABILITY FOR ALL DAMAGES OR CLAIMS ARISING OUT OF OR RELATING TO THE PRODUCTS OR THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AMOUNT BUYER PAID FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM OR DAMAGES. THESE LIMITATIONS APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THESE LIMITATIONS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
b) Safety. Buyer is solely responsible for selection of the Products for Buyer’s intended use (including in Integrated Products and its distribution to Evaluators), for the safe and proper use of data and information output generated by the Products, and for compliance with all applicable laws, rules and regulations in the use of the Products.
10) Indemnification. Buyer will indemnify and hold Ouster and its affiliates harmless from all costs, losses, liabilities and expenses arising out of or related to any third party claim, suit, or proceeding brought against Ouster or its affiliates that arises out of the use, storage, sale, resale, processing, or other disposition of the Products, including: (i) the use, storage, sale, processing, or other disposition of any Integrated Products and (ii) the provision of the Products to an Evaluator; except for claims indemnifiable by Ouster under Section 10(a).
a) Notices. All notices required hereunder shall be: (i) in writing and personally delivered; (ii) sent by facsimile transmission if the sender on the same day sends a confirming copy of such notice by reputable overnight delivery service (charges prepaid); (iii) reputable overnight delivery service (charges prepaid); or (iv) certified United States mail, postage prepaid return receipt requested. All notices for Ouster will be sent to Ouster’s address set forth in this Agreement or such other address as Ouster may specify in writing under this Section 11(a). All notice for Buyer will be sent to Buyer’s address set forth in the order or, if no such address is specified, to Buyer’s address in Ouster’s most recent records.
b) Interpretation and Language. Use of the word “including” herein means “including but not limited to” and “including without limitation.” The governing language of this Agreement is English, and all notices will be in the English language. Any translation is for convenience only and will have no effect on the interpretation of this Agreement.
c) Assignment. This Agreement will not be assignable by either party without the prior written consent of the other party hereto, except that Ouster may assign this Agreement without Buyer’s consent in connection with a merger, acquisition, change of control or sale of substantially all of the assets of Ouster to which this Agreement relates. This Agreement will be binding upon and enforceable against the parties’ successors and permitted assigns.
d) Governing Law; Jurisdiction; Venue. This Agreement and any dispute arising from the performance or breach hereof will 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 will not apply. If Buyer’s primary place of business is located outside the United States, the parties agree that all disputes or claims arising out of, in relation to, or in connection with this Agreement, and any subsequent amendments to this Agreement, including the interpretation, making, performance, breach, or termination thereof, and the arbitrability of such disputes and claims, will be finally settled by binding arbitration under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The arbitration will be conducted in English in San Francisco, California, and judgment on the arbitrator’s award may be entered in any court of competent jurisdiction. If Buyer’s primary place of business is within the United States, 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 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 and without any abridgment of the powers of the arbitrators and courts set forth above.
e) Force Majeure. Nonperformance of any party (other than with respect to payment obligations) will be excused to the extent that performance is rendered impracticable 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.
f) 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 any right provided by contract, statute, at law, or in equity, will impair, prejudice or constitute a waiver of any such right, nor will any partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right.
g) Independent Contractors. Nothing contained in this Agreement is intended implicitly, or is to be construed, to constitute Ouster and Buyer as partners or joint venturers in a legal sense. No party hereto will 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.
h) Modification; Waivers; Severability. No provision of this Agreement will be varied or contradicted 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 will negotiate in good faith (or a judge or arbitrator will adjudicate) a valid, legal and enforceable substitute provision that most nearly reflects the original intent of the parties, and all other provisions hereof will remain in full force and effect in such jurisdiction and will 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 will not affect the validity, legality or enforceability of such provision in any other jurisdiction.
i) Export Laws and Government Approval. Buyer agrees to comply fully with all laws and regulations of the United States and other countries governing the import or export products or technology (“Export Laws”) and will 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 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 will cooperate with each other and will provide reasonable assistance to the other to obtain any required approvals.
j) Entire Agreement. This Agreement constitutes the entire agreement of the parties 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.