Terms and Conditions of Sale

Terms and Conditions of Sale
1

General

These Terms and Conditions of Sale (these “Terms”) shall apply to your purchases from Tempo Automation, Inc., a Delaware corporation (“Tempo Automation”).  As used in these Terms, “Customer” means you.  Tempo Automation and Customer are each referred to as a “Party” and together as the “Parties” in these Terms.  Tempo Automation provides printed circuit board assemblies (“PCBAs”) built to the specifications of our customers (“Products”) and services and related plug-ins, software, and tools (“Services”).  These Terms include the “Terms of Use” for our website, www.tempoautomation.com (the “Site”), available here, and our “Privacy Policy,” available here.  By purchasing Products and Services subject to these Terms, you are agreeing to the Tempo Automation Terms, as well as our Terms of Use and our Privacy Policy.

2

Updates to Terms

This version of the Terms was released and made effective as of October 2, 2021, and this version of the Terms applies to all Orders (as defined below) that are accepted by Tempo Automation on and following such effective date of these Terms.  Tempo Automation reserves the right to modify and post updates of these Terms to the Site, and any such modified or updated Terms shall apply to all Orders accepted by Tempo Automation on and following the date that such modified or updated Terms are posted to the Site.

3

Quoting Process

Customer may prepare and submit a request for a quotation for Products and Services (a “RFQ”) using the RFQ form provided on the Site or by sending an email or contacting Tempo Automation.  Customer must provide all of the information required by the RFQ form in a format acceptable to Tempo Automation (the “Build Information”), including, without limitation, the technical specifications for the Product (the “Specifications”), the bill of materials (the “BOM”), and the design file.  If we accept your initial RFQ, or if you and we agree on revised Build Information or other changes to your initial RFQ through subsequent email or other written communications (“Pre-Quote Changes”), we will provide you with a quotation for the applicable Products, including estimated pricing, delivery time, and the total cost for the order (the “Quote”).  Quotes are valid for a period of thirty (30) days, or such other period of time specified in the Quotes; however, a Quote is only an estimate and is subject to further review and revision by us until the Parties have reached agreement on a final order.  After we have provided a Quote, any change by you to the RFQ requires an updated Quote.  Tempo Automation reserves the right to reject an RFQ for any reason or to place limitations and restrictions on the types of orders Tempo Automation will accept, such as minimum and maximum order sizes, limitations on the specifications for Products, or limitations on the parts or components Tempo Automation can obtain or use for an order.

4

Order and Acceptance

If Customer desires to purchase the quoted Products and Services based on the Quote, Customer may place an order using the functionality made available through the Site for such purpose or issue a purchase order or other writing to Tempo Automation that conforms with or attaches the Quote.  Customer and Tempo Automation agree that Customer’s placement of a purchase order only serves the purpose of confirming Customer’s agreement to the Quote based on these Terms.  The only additional terms and conditions in Customer’s purchase order that shall be operative, if (and only if) accepted in writing by Tempo Automation, shall be terms regarding the description, price, quantity, and shipping destination for Products and Services.  Any and all other terms and conditions contained or referenced in Customer’s purchase order shall be excluded and deemed inapplicable to the transaction and shall be given no legal effect to modify or supplement these Terms or the Quote.  A legally binding contract for the sale of Products and Services (the “Order”) is only formed when Tempo Automation issues its written acceptance of Customer’s purchase order with any modifications made by Tempo Automation in its written acceptance (the “Acceptance”).  The Order incorporates these Terms (including the Terms of Use and the Privacy Policy) and is governed by them, and the Order is effective as of the date of the Acceptance (the “Order Date”).

5

Agreement of the Parties

These Terms shall be effective between the Parties on the date that Tempo Automation issues its Acceptance of Customer’s first Order subject to these Terms (the “Effective Date”), and they shall apply to all subsequent Orders accepted by Tempo Automation subject to these Terms.  These Terms together with all Orders accepted by Tempo Automation subject to these Terms constitute the “Agreement” entered into between the Parties.  The terms and conditions contained in these Terms shall be the only terms and conditions governing the Agreement for the purchase and sale of Products and Services between Customer and Tempo Automation.  No other terms and conditions issued by Customer shall apply and are hereby expressly rejected and excluded, including, without limitation, any terms and conditions referenced in or contained in or on a RFQ, purchase order, Customer’s manuals or policies, or Customer’s website.  Any inconsistencies in documents exchanged between the Parties shall be resolved in accordance with the following descending order of precedence: (A) the Terms (including any amendments to the Terms pursuant to Section 23(i)); (B) any agreed-to Post-Order Changes (as defined below), and if there were a conflict in terms in agreed-to Post-Order Changes, precedence shall be given to the later agreed-to Post-Order Change; (C) the Order; (D) the Acceptance; (E) Customer’s purchaser order or other confirmation of the Quote; (F) the Quote; and (G) all other referenced documents, exhibits, and attachments.

6

Site Account

Tempo Automation may provide Customer with the ability to create and maintain an account with Tempo Automation for Customer’s use of the Site and placement of Orders.  As part of the registration process for an account, Customer is required to provide certain information.  The information Customer provides in the registration process, or in updating such information, is referred to herein as “Registration Data.”  Customer agrees that all Registration Data it provides to Tempo Automation will be and will remain accurate, current, and complete, and Customer agrees to update this information to keep it accurate, current, and complete.  Customer is solely responsible for maintaining the confidentiality of its account log in information and password.  Customer agrees not to use the email, username, password, or account of another user, or to permit anyone else to use Customer’s username, password, or account.  Customer agrees that if it becomes aware of any unauthorized use of its username, password, or account, it shall promptly notify Tempo Automation.  Customer is solely responsible for all activities that occur under its account.  Customer acknowledges that it does not own its account, nor does it possess any rights of access to data stored in its account.  Customer acknowledges and agrees that, except for Customer Information (as defined below), Tempo Automation owns any information or data resulting from Customer’s use of the Site.

7

Customer Information and Responsibility for Design

Customer acknowledges that it is solely responsible for the Build Information, including the design file, the Specifications, and the BOM, and any other information, materials, or technology supplied by Customer (collectively, “Customer Information”). Tempo Automation assumes no responsibility for the design of the Product or any other Customer Information.  Tempo Automation’s personnel may provide comments or suggested changes to Customer Information, including, without limitation, Customer’s design file (for example, to assist Customer with adapting its Build Information to Tempo Automation’s manufacturing process), but Customer retains sole responsibility for the Build Information and other Customer Information and the safety and performance of the Products.  Customer is solely responsible for ensuring that materials, processes, and Specifications selected for the Products meet all applicable legal requirements, including health and safety laws and restrictions on hazardous materials.  If Tempo Automation’s personnel provide advice or technical requirements regarding materials, processes, or Specifications, Customer shall verify such information prior to authorizing its use for the Products or Services.  Customer is solely responsible for ensuring the Products and Services meet applicable laws.  Customer agrees that Tempo Automation shall have no liability for Tempo Automation’s comments on or suggested changes to, or for any errors, omissions, or other deficiencies in, the materials, processes, or Customer Information (including, without limitation, the Specifications, the BOM, and the design file).  Customer represents and warrants to Tempo Automation that the Customer Information provided to Tempo Automation in connection with an Order (including, without limitation, the information in the RFQ) is accurate and complete, that Customer has all necessary legal rights to provide the Build Information and other Customer Information to Tempo Automation for use in manufacturing the Products and providing the Services, and that Tempo Automation’s use of Customer Information in manufacturing of the Products and providing the Services will not infringe the intellectual property rights of any third party.

Customer may request Tempo Automation to delete its Customer Information at the end of the commercial relationship between the Parties, but Customer acknowledges and agrees that Tempo Automation may retain Customer Information and Registration Data that is incorporated into Tempo Automation’s business records for as long as those business records need to be maintained for Tempo Automation’s business and for record retention and legal compliance purposes.

8

Manufacturing and Assembly of Products

Components used in the manufacturing and assembly of Products are based on the BOM. Components are purchased on a per-order basis and must be components that we can source from vendors on our Approved Vendors List (“AVL”), unless the Parties agree to use Directed-Buy Components (as defined below).  Tempo Automation does not store or otherwise promise to maintain in inventory any components, unless agreed to in writing by Tempo Automation and Customer.  If Tempo Automation agrees to accept consignment of components as part of an Order or agrees to store components for Customer (for example, while waiting for the arrival of long-lead-time components), Tempo Automation will provide suitable bin locations for storage and will charge Customer storage fees.  However, Customer shall remain liable for all risk of loss or damage to consignment stock or other components stored on Customer’s behalf.  Tempo Automation does not assume responsibility for the usability or manufacturing readiness of consigned components, and Customer is responsible for replacing any consigned components that are not usable or manufacturing ready.  Customer must provide Tempo Automation with process data sheets for consigned components that cannot be assembled as part of the Product using our standard manufacturing processes or that come from a supplier that is not on Tempo Automation’s AVL.

Orders are assembled in one continuous process.  Tempo Automation will not assemble a portion of an Order, and then suspend or delay assembly of another portion at Customer’s request.  Tempo Automation may use outside vendors or subcontractors to fulfil an Order.  Tempo Automation uses manufacturing and assembly processes for PCBAs that meet IPC-A-610 Class 2 requirements, unless we have specified in the Acceptance for an Order that we will use manufacturing and assembly processes satisfying different manufacturing requirements.  Tempo Automation does not permit customer involvement in the manufacturing and assembly process for Products.  Tempo Automation does not allow on-site visits or inspections at our facilities without obtaining Tempo Automation’s prior written consent (which we may withhold in our sole discretion).

9

Directed-Buy Components

Due to supply constraints in the semiconductor market, components for Products may not be available on reasonable terms from suppliers on Tempo Automation’s AVL. If Customer authorizes Tempo Automation to purchase components (the “Directed-Buy Components”) for the manufacturing and assembly of Products from vendors that are not on Tempo’s AVL (“DBC Suppliers”), then Tempo will purchase the Directed-Buy Components for Customer’s account under the terms in this Section 9.  Tempo Automation takes no responsibility for the performance of the DBC Suppliers or for the Directed-Buy Components, and Customer accepts all risks associated with using the DBC Suppliers and the Directed-Buy Components.  The Parties further agree that the following additional terms apply to the purchase and use of the Directed-Buy Components:

  • (a) No Representations. Tempo Automation has not qualified or certified the DBC Suppliers.  Tempo Automation makes no representations concerning the performance of the DBC Suppliers or their compliance with laws, policies, and industry standards applicable to the manufacturing and supplying of materials, parts, and components used in semiconductor manufacturing, including, but not limited to, those concerning counterfeit parts, conflict materials, ITAR, ESD handling, quality management, and export controls.  Customer is solely responsible for ensuring that the DBC Suppliers comply with applicable laws and Customer’s policies when they supply the Directed-Buy Components.
  • (b) DBC Supplier Terms of Sale. The terms of sale of the DBC Suppliers may materially differ from these Terms, and Customer acknowledges that the DBC Suppliers’ terms of sale may materially affect Tempo Automation’s performance in providing Products and Services to Customer.  Customer agrees in advance that Tempo Automation may, in its sole discretion, make reasonable modifications to its performance to account for a DBC Supplier’s terms of sale and may issue a Post-Order Change to reflect those modifications.  If Customer does not approve such Post-Order Change within seven (7) days of Tempo Automation’s issuance of it, then Tempo Automation may, in its sole discretion, cancel the line items of the Order that are affected by the DBC Supplier’s terms of sale and invoice Customer for the Cancellation Payments (as defined below) for those line items, pursuant to Section 15(d).
  • (c) DBC Supplier Performance. Tempo Automation takes no responsibility for mis-quotes, price changes, delivery date changes, or the performance of (or the failure to perform) any other contractual obligations by the DBC Suppliers.  Customer authorizes Tempo Automation to make, in its sole discretion, reasonable modifications to price, delivery dates, and other contractual performance terms between Tempo Automation and Customer to respond to changes made by the DBC Suppliers or their performance, and Tempo Automation may issue a Post-Order Change to reflect those modifications.  If Customer does not approve such Post-Order Change within seven (7) days of Tempo Automation’s issuance of it, then Tempo Automation may, in its sole discretion, cancel the line items of the Order that are affected by the DBC Supplier’s performance and invoice Customer for the Cancellation Payments for those line items, pursuant to Section 15(d).
  • (d) DBC Data Sheets. Tempo Automation has no responsibility for the accuracy of data sheets or specifications provided by the DBC Suppliers, and Tempo Automation provides no warranty on the Directed-Buy Components and makes no representations or warranties regarding the performance or suitability of the Directed-Buy Components or their compatibility with Tempo Automation’s manufacturing and assembly processes.
  • (e) Hold Harmless and Release. Customer assumes all risks of using Directed-Buy Components and the DBC Suppliers, and Customer agrees to hold harmless and release Tempo Automation from any liabilities, claims, losses, damages, costs, and expenses arising from the use of the Directed-Buy Components or the DBC Suppliers.
  • (f) Warranty Disclaimer for Directed-Buy Components. TEMPO AUTOMATION PROVIDES NO WARRANTIES ON DIRECTED-BUY COMPONENTS, INCLUDING, BUT NOT LIMITED TO, THE PRODUCT AND SERVICE WARRANTIES IN SECTION 19 (WARRANTY); AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, TEMPO AUTOMATION EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, STATUTORY OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE.

10

BOM Orders

Due to supply constraints in the semiconductor market, Customer may request that Tempo Automation acquire materials, parts, and components, or the entire BOM, for a Product before placing an Order to assemble the Product. If Customer places an Order with Tempo Automation to acquire materials, parts, components, or BOMs that will not be incorporated into Products manufactured or assembled by Tempo Automation for Customer within thirty (30) days of the Order Date (a “BOM Order”), then the following additional terms apply to that BOM Order:

  • (a) Applicability of this Section. An Order may combine line items for Products or Services with line items for BOM Orders, and the provisions of this Section 10 shall only apply to the line items in the Order that constitute BOM Orders.  If an Order for a Product is not completed within thirty (30) days of the Order Date, then Tempo Automation may, in its sole discretion, at any time after that date convert the applicable line item of the Order to a BOM Order by issuing a Post-Order Change, and upon conversion, the additional terms in this Section 10 for BOM Orders shall apply to that line item of the Order.  If Customer does not approve such Post-Order Change within seven (7) days of Tempo Automation’s issuance of it, then Tempo Automation may, in its sole discretion, cancel the line items of the Order that constitute a BOM Order and invoice Customer for the Cancellation Payments for those line items, pursuant to Section 15(d).
  • (b) Prices. for the materials, parts, and components shall be those specified in the BOM Order and not the pricing used in any other Orders with Customer.
  • (c) Non-Refundable and Non-Cancellable. A BOM Order is non-refundable and non-cancellable (in whole or in part) once the BOM Order has been accepted by Tempo Automation.  Changes, deletions, amendments, or cancellations of individual items or multiple items in a BOM Order will not be credited against the BOM Order’s total price (or against a future Order), and will require a Post-Order Change issued by Tempo Automation.  If Customer does not approve the Post-Order Change within seven (7) days of Tempo Automation’s issuance of it, then Tempo Automation may, in its sole discretion, cancel the BOM Order and invoice Customer for the Cancellation Payments for the BOM Order, pursuant to Section 15(d).
  • (d) Invoicing for BOM Orders. Tempo Automation shall issue invoices to Customer for a BOM Order as follows: (A) fifty percent (50%) of the BOM Order’s total price shall be invoiced on the date of Tempo Automation’s acceptance of the BOM Order, and (B) fifty percent (50%) of the BOM Order’s total price shall be invoiced on the date Tempo Automation receives the materials, parts, and components under the BOM Order at its facility.  If a line item of an Order is converted to a BOM Order, then Tempo Automation shall invoice Customer for such line item in the Order as follows: (X) fifty percent (50%) of such converted line item’s price on the date of Customer’s approval of the Post-Order Change, and (Y) fifty percent (50%) of such converted line item’s price on the date Tempo Automation receives the materials, parts, and components under such line item at its facility.
  • (e) Storage Fees for BOM Orders. Tempo Automation will notify Customer in writing when all items in a BOM Order have been received by Tempo Automation at its facility.  Within thirty (30) days of the date of such written notice, Customer shall either enter into an Order with Tempo Automation for Tempo Automation to incorporate such items into Products, or shall arrange with Tempo Automation for the shipping of such items, at Customer’s expense and risk of loss, Ex Works Tempo Automation’s facility (Incoterms 2020), with Customer paying Tempo Automation’s reasonable packaging and handling fees and obtaining insurance on the shipment.  If some or all of such items remain in storage at Tempo Automation’s facility for more than thirty (30) days after Tempo Automation’s written notice that all items in a BOM Order have been received and an Order to incorporate such stored items into Products assembled by Tempo Automation has not been entered into by the Parties, then Tempo Automation may, upon seven (7) days written notice to Customer, invoice Customer for storage fees equal to five percent (5%) of the acquisition price of the stored items for every thirty (30) days such items remain in storage following the expiration of the seven (7) day notice period.
  • (f) Warranty Disclaimer for Certain BOM Orders. TEMPO AUTOMATION PROVIDES NO WARRANTIES ON MATERIALS, PARTS, AND COMPONENTS OBTAINED UNDER A BOM ORDER THAT ARE SHIPPED TO CUSTOMER (OR ITS DESIGNEE) AND NOT INCORPORATED BY TEMPO AUTOMATION INTO A PRODUCT, INCLUDING, BUT NOT LIMITED TO, THE PRODUCT AND SERVICE WARRANTIES IN SECTION 19 (WARRANTY); AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, TEMPO AUTOMATION EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, STATUTORY OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE.

11

Country of Origin

Tempo Automation makes no certification as to the country of origin of materials, parts, or components used in Products sold under the Agreement.  Tempo Automation disclaims and rejects any certifications of country of origin included in any of Customer’s documents or communications related to the Agreement.  If Customer’s Build Information specifies the supplier and manufacturer part number (MPN) for some or all of the components to be used in the Products, then Tempo Automation shall only use the specified components for those Products.  If (and only if) Tempo Automation receives from its suppliers or subcontractors information on the country of origin of components incorporated into the Products, then Tempo Automation will pass that information onto Customer at its request, but the Parties agree that Tempo Automation does not have a duty to verify such information and it makes no representations or warranties as to its accuracy or completeness of such information.

12

Price and Terms of Payment

All prices are quoted and payments shall be made in U.S. Dollars. Unless specifically stated otherwise in the Quote, prices are exclusive of freight, shipping, special packaging or handling, duties, tariffs, custom duties and fees, levies, and sales, excise, use, or other taxes arising in connection with the sale.  Payment may be made by credit card or other form of payment acceptable to Tempo Automation.

Unless Tempo Automation, in its sole discretion, approves credit for Customer, all Orders must be prepaid by Customer prior to Tempo Automation’s commencement of work on the Orders.  Upon credit approval of Customer, Tempo Automation will invoice Customer for Orders on the date of shipment (except for BOM Orders, which shall be invoiced pursuant to the terms in Section 10).  Customer agrees to pay all invoiced amounts, net thirty (30) days from the date of Tempo Automation’s invoice, unless other payment terms are agreed to in writing by the Parties for an Order.  Amounts not paid when due are subject to a finance charge of 18.0% per year (or the maximum interest rate permitted by law, if it is less), plus all reasonable expenses of collection.  If Customer requests Tempo Automation to present invoices or other information electronically via Customer’s or a third party’s electronic payment website, any costs associated with such access shall be paid by Customer.

13

Delivery; Title; Shipment

Any stated delivery dates represent Tempo Automation’s intended or typical delivery time and are estimates, but actual delivery dates may vary.  The Order may use a delivery date stated as a specified number of days following the date that all materials, parts, and components for the Order have been received at Tempo Automation’s facility and organized for use in assembly of the Products.  Tempo Automation will use commercially reasonable efforts to meet agreed delivery dates, but unavailability of components, semiconductor supply constraints, yield loss, deficiencies in the Build Information, changes made to the Order, or other circumstances may affect the delivery dates.  Tempo Automation may make available for delivery partial shipments of Products in an Order, and you agree to accept those partial shipments and agree that Tempo Automation may invoice you on the date of shipment for the value of those partial shipments.  Unless otherwise provided in the Order, all Products, materials, parts, and components are shipped Ex Works Tempo Automation’s facility (Incoterms 2020).  Title and risk of loss pass to the Customer at the time of delivery to the carrier at Tempo Automation’s facility.  Customer is responsible for obtaining insurance covering loss or damage during shipment.  Unless we otherwise agree in writing, packaging of all Products is pursuant to our standard packaging.  Shipment within the United States is via overnight courier, with the courier selected by us and the shipment costs paid by you.  For any shipment outside the United States, Customer shall be solely responsible for making all shipment arrangements and for ensuring compliance with applicable laws, regulations, and governmental orders and payment of all duties, tariffs, and other fees.

14

Post-Order Changes

  • (a) General. Once an Order has been placed, it cannot be changed without obtaining Tempo Automation’s written consent.  Either Party may request in writing a change to an Order (a “Post-Order Change”), including, for example, technical change orders, requests to expedite an order, changes to delivery dates or locations, or changes in prices or quantities in an Order.  The Parties may agree to a Post-Order Change by an exchange of emails.  Customer understands that Post-Order Changes may cause delays in delivery dates.  Customer shall be responsible for any additional costs of Products or Services attributable to Post-Order Changes.  Tempo Automation will send Customer an email or other writing with the increased Order price for the requested Post-Order Change, and Customer must agree to the increased Order price by email or other writing within the time specified by Tempo Automation for the Post-Order Change to become effective.
  • (b) Supply Constraints.  Due to supply constraints in the semiconductor market, Tempo Automation may request a Post-Order Change in the price of an Order or delivery dates or in materials, parts, or components used in the BOM for the Order because of increases in prices or unavailability of certain materials, parts, or components for the Order.  If Tempo Automation and Customer are unable to reach agreement on such a requested Post-Order Change within seven (7) days of Tempo Automation’s issuance of the Post-Order Change, then Tempo Automation may, in its sole discretion, cancel the affected Order, or portion thereof, and invoice Customer for the Cancellation Payments, pursuant to Section 15(d).

15

Holds and Cancellations of Orders

  • (a) Hold Fees. If Customer requests that an Order be placed on hold for a period longer than forty-eight (48) hours, Tempo Automation may, in its sole discretion, issue a Post-Order Change to add to the Order price a fee for the suspension of work and the possible break down of any setup for the Order and the re-setup of the Order when the hold is removed (the “Hold Fee”).  The amount of the Hold Fee will depend on the manufacturing stage that the Order is in at the time of the hold request.  Tempo Automation will issue a Post-Order Change to Customer with the Hold Fee, and if Customer does not approve that Post-Order Change (or rescind the hold request) within three (3) days of Tempo Automation’s issuance of it, then Tempo Automation may, in its sole discretion, cancel the Order and invoice Customer for the Cancellation Payments for the Order, pursuant to Section 15(d).  If an Order remains on hold for more than thirty (30) days due to Customer’s hold request, then on or after the thirty-first (31st) day Tempo Automation will invoice Customer for fifty percent (50%) of the Order price, and shall invoice Customer for the remaining fifty percent (50%) of the Order price on the date of shipment of the Products, materials, parts, and components under the Order.
  • (b) Cancellation by Customer. If, at any time after Tempo Automation has issued its Acceptance of an Order, Customer cancels that Order, in whole or in part, for any reason other than pursuant to Section 23(c) for a material breach of the Order or the Agreement by Tempo Automation, then Tempo Automation shall invoice Customer for the Cancellation Payments, pursuant to Section 15(d).
  • (c) Cancellation of Delayed Orders. If for any reason Tempo Automation does not complete an Order, including a BOM Order, within six (6) months of the Order Date, then Tempo Automation may, in its sole discretion, cancel the Order and invoice Customer for the Cancellation Payments, pursuant to Section 15(d).
  • (d) Payments Upon Cancellation of an Order. If for any reason Customer or Tempo Automation cancels an Order, in whole or in part, Tempo Automation shall invoice Customer and Customer agrees to pay the following amounts to Tempo Automation (the “Cancellation Payments”): (i) the Order price for all Products and Services completed on or before the date of cancellation; (ii) payment for work in progress, consisting of a percentage of the Order amount for partially completed Products and Services reflecting the approximate percentage of work completed on or before the date of cancellation; (iii) the cost of materials, parts, and components Tempo Automation purchased for the Order on or before the date of cancellation that were not used in the completed or partially completed Products and Services, but Tempo Automation will provide Customer with a credit for the net proceeds for those materials, parts, and components that Tempo Automation is reasonably able to cancel, re-purpose, or re-sell; and (iv) if applicable, a cancellation fee of ten percent (10%) of the Order price or, if a partial cancellation, ten percent (10%) of the price of that portion of the Order that is cancelled (the “Cancellation Fee”).  In calculating the Cancellation Payments owed by Customer, (x) the total of payments owed under clauses (i), (ii), and (iii) of this Section 15(d) shall not exceed the Order price; and (y) the Cancellation Fee in clause (iv) shall only be included as part of the Cancellation Payments if (A) Customer cancels an Order, in whole or in part, under Section 15(b), or (B) Tempo Automation cancels an Order, in whole or in part, due to Customer’s failure to agree in writing to Tempo Automation’s requested Post-Order Change pursuant to Sections 9(b), 9(c), 10(a), 10(c), or 15(a), within the time period specified in the applicable Section, or due to a material breach of the Agreement or an Order by Customer under Section 23(c).  Upon Customer’s payment of the invoice for the Cancellation Payments, Tempo Automation shall ship to Customer, at Customer’s expense, the completed and partially completed Products, materials, parts, and components, Ex Works Tempo Automation’s facility (Incoterms 2020), with Customer paying Tempo Automation’s reasonable packaging and handling fees and obtaining insurance on the shipment.

16

Confidential Information

  • (a) Confidential Information. For purposes of the Agreement, “Confidential Information” means information that is not publicly known or readily ascertainable through lawful means, whether in tangible or intangible form, including without limitation technologies, inventions, algorithms, ideas, designs, formulas, know-how, methods, processes, programs, software code, prototypes, systems, techniques, non-public data and business information, and customer lists.
  • (b) General. This Section 16 governs the disclosure and use of Confidential Information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) under the Agreement; provided, however, if there is a non-disclosure agreement in effect between Customer and Tempo Automation during part or all of the term of the Agreement, then during such period of time (i) the terms of that non-disclosure agreement and subsections (a) and (b) of this Section 16 shall govern the disclosure of Confidential Information between the Parties, and (ii) the provisions of subsections (c) to (i) of this Section 16 shall not apply.
  • (c) Designating Confidential Information. The Disclosing Party shall mark Confidential Information that is in writing or other tangible form as “confidential”, “proprietary”, or with a similar legend at the time of disclosure, and, if disclosed orally, visually, or in any other intangible manner or media, shall designate it as confidential at the time of disclosure and reduce it to a written summary that is marked in a manner to indicate its confidential nature and delivered to the Receiving Party within thirty (30) days after its initial disclosure; provided further that, information shall be Confidential Information under the Agreement if the Receiving Party knew, or reasonably should have known under the circumstances of disclosure or by the nature of the information itself, that it was Confidential Information.
  • (d) Exceptions. Confidential Information shall not include information that: (i) was in the public domain at the time it was disclosed to the Receiving Party; (ii) enters the public domain subsequent to the time it was disclosed to the Receiving Party, through no fault of the Receiving Party; (iii) was in the Receiving Party’s possession free of any obligation of confidence at the time it was disclosed to the Receiving Party; (iv) is obtained by the Receiving Party from a third party without an accompanying duty of confidentiality and without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
  • (e) Maintenance of Confidentiality. The Receiving Party shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the Disclosing Party for a period of three (3) years following the date of disclosure of the Confidential Information.  The Receiving Party agrees that it shall use the same degree of care to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the Disclosing Party that it uses to protect its own Confidential Information of similar importance, but in no event shall the Receiving Party take less than reasonable care in protecting the Disclosing Party’s Confidential Information.  The Receiving Party shall reproduce the Disclosing Party’s confidentiality or proprietary rights notices on all copies of Confidential Information, in the same manner in which such notices were set forth in or on the original.  The Receiving Party shall promptly notify the Disclosing Party in the event of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information.
  • (f) No Reverse Engineering. The Receiving Party shall not reverse engineer, disassemble, or decompile any prototypes, software, samples, or other tangible objects that embody the Disclosing Party’s Confidential Information and that are provided to the Receiving Party under the Agreement.
  • (g) Authorized Disclosures. The Receiving Party may disclose Confidential Information of the Disclosing Party as required to be disclosed by law, or pursuant to a subpoena or order of a court or other government body, or in response to a request by a federal, state, local, or foreign tax agency, provided that the Receiving Party promptly notifies in writing the Disclosing Party (unless prohibited by law from doing so), so that the Disclosing Party may seek a protective order or confidential treatment of the Confidential Information.
  • (h) Publicity. The Parties agree that during the course of the Parties’ commercial relationship, Tempo Automation may place Customer’s logo and name on Tempo Automation’s website to publicize the fact of the customer relationship, which shall not be considered Confidential Information.  Tempo Automation will not disclose on its website any other information about the customer relationship without obtaining the prior written approval of Customer.
  • (i) Return of Confidential Information. Upon written request of the Disclosing Party, the Receiving Party shall promptly return to the Disclosing Party or destroy all copies of the Disclosing Party’s Confidential Information and provide to the Disclosing Party written certification of such return or destruction.

17

Intellectual Property

  • (a) Definitions. The following definitions apply to the Agreement: (i) “Basic IP” means Intellectual Property developed by, licensed to, or obtained by a Party independently of the Agreement, whether before or after its Effective Date.  With respect to Tempo Automation, its Basic IP includes Tempo Automation’s process technology, which relates to the manufacturing, assembling, sourcing, and quoting for PCBAs and Products and the performance of Services, including, without limitation, any processes, procedures, methods, techniques, know-how, algorithms, software, test hardware, tooling, fixtures, plant, and equipment.  (ii) “Foreground IP” means any and all new Intellectual Property developed by a Party during the term of the Agreement while performing its obligations under the Agreement.  (iii) “Improvement” means modifications, alterations, additions, improvements, derivative works, and the like to pre-existing Intellectual Property that incorporates, exploits, or cannot be used without employing all or any part of such pre-existing Intellectual Property.  (iv) “Intellectual Property” means any and all intellectual property rights and other similar proprietary rights in any jurisdiction in the universe, whether registered or unregistered, whether owned or held for use under license, including, without limitation, all rights and interests pertaining to or deriving from copyrights, patents and patent applications, trademarks, trade dress, trade names, mask work rights, rights in any concepts, i­deas, developments, inventions, technologies, designs, processes, techniques, algorithms, trade secrets, know-how, works of authorship, computer programs, software (both source and object code), and other confidential or proprietary information (whether or not patented or patentable), moral rights, and publicity rights, including in each case any registrations of, applications to register, and renewals and extensions of, any of the foregoing with or by any governmental authority in any jurisdiction in the universe.
  • (b) Ownership of Basic IP. Each Party owns and shall retain all rights, title, and ownership in its Basic IP, and it has no ownership rights in the other Party’s Basic IP.
  • (c) Ownership of Foreground IP; Improvements. Customer owns and shall retain all rights, title, and ownership in Customer’s Foreground IP, together with all Improvements to any of its Intellectual Property created or conceived by Customer, whether created pursuant to the Agreement or otherwise.  Tempo Automation owns and shall retain all rights, title, and ownership in Tempo Automation’s Foreground IP, together with all Improvements to any of its Intellectual Property created or conceived by Tempo Automation, whether created pursuant to the Agreement or otherwise.
  • (d) Residuals. The Parties may use and disclose for any purpose, during the Agreement and following its termination, the ideas, concepts, know-how, and techniques retained in the unaided memory of a person as a result of such person’s access to, working with, or review, evaluation, or testing of the other Party’s Confidential Information and Intellectual Property, without such person referring to or attempting to commit to memory the Confidential Information or Intellectual Property of the other Party (“Residuals”).  The provisions of this Section 16(d) on Residuals shall not be deemed to grant a license to any of the Confidential Information or Intellectual Property of the other Party.
  • (e) Representation on Products. Tempo Automation represents and warrants to Customer that the Products made and delivered by Tempo Automation to Customer under the Agreement shall not include or embody Tempo Automation’s Basic IP, Foreground IP, or Improvements.

18

Software License

We may from time to time offer downloadable plug-ins, mobile applications, or other software for your use is connection with your use of the Site or the Services we provide to you, which may also include associated media, printed materials, and “online” or electronic documentation (the “Documentation,” and together with the software, collectively referred to as the “Tempo Software”). BY ACCESSING, DOWNLOADING, INSTALLING, ACTIVATING, OR OTHERWISE USING THE TEMPO SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS SOFTWARE LICENSE.  Subject to the terms and conditions of the Agreement and the Limitations and Restrictions (as defined below), Tempo Automation grants to you, during the term of the Agreement, a non-exclusive, non-transferable and non-assignable (with no rights to sublicense), limited license to install, access, display, run, and use in object code form only the Tempo Software for your internal use in connection with your use of the Site and in accordance with the Agreement and the Documentation.

The software license granted herein is conditioned on your compliance with, and you agree to, the following limitations and restrictions: (a) you shall not use the Tempo Software outside of the scope of the license granted herein; (b) you shall not alter, modify, enhance, adapt, or create derivative works of the Tempo Software; (c) you shall not reverse engineer, decompile, disassemble, or attempt to derive the source code of the Tempo Software; (d) you shall not remove, alter, or conceal any copyright, trademark, patent, or other proprietary or intellectual property notices or marks from any copies of the Tempo Software; (e) you shall not republish, publicly display, translate, rent, lease, loan, sell, transmit, distribute, or otherwise exploit the Tempo Software; and (f) you shall not make the functionality of the Tempo Software available to third parties, whether as an application service provider, or on a rental, service bureau, cloud service, hosted service, or other similar basis, or use the Tempo Software to provide commercial services to third parties (collectively, the “Limitations and Restrictions”).

The Tempo Software is licensed, and not sold, to you for use only under the terms of this software license.  The Tempo Software is protected by copyright and other Intellectual Property laws and treaties.  Tempo Automation or its suppliers own the title, copyright, and other Intellectual Property rights in the Tempo Software.  Except as expressly licensed to you herein, Tempo Automation and its suppliers reserve all right, title, and interest in the Tempo Software and all associated copyrights, trademarks, and other Intellectual Property rights therein.  The software license is limited to the Intellectual Property rights of Tempo Automation and its suppliers in the Tempo Software and does not include any rights to other Intellectual Property.

The Tempo Software and Documentation are “commercial computer software” and “commercial computer software documentation,” as such terms are used in Federal Acquisition Regulations (“FAR”), 48 C.F.R. § 12.212.  Consistent with FAR, 48 C.F.R. §§ 12.211 to 12.212, and Defense Federal Acquisition Regulation Supplement (“DFARS”), 48 C.F.R. §§ 227.7202-1 to 227.7202-4, and notwithstanding any other regulation or contract clause to the contrary in any agreement to which an Order may be a part of, U.S. Government and other state, local, and foreign government end users will acquire the Tempo Software with only the rights (and subject to the Limitations and Restrictions) set forth in this software license.

This software license is subject to termination at any time by Tempo Automation for any reason upon notice to you.

19

Warranty

Tempo Automation provides to Customer the following warranties on Products and Services during the “Warranty Period,” which is the thirty (30) day period that begins on (i) the date of Customer’s receipt of the Products, or (ii) the date of the performance of the Services for Customer.

  • (a) Product Warranty. Tempo Automation warrants that during the Warranty Period the Products will be free from defects in materials and workmanship and will conform in all material respects to the Specifications.  If a Product fails to conform to the foregoing warranty and a valid claim is received by Tempo Automation within the Warranty Period, Customer’s sole and exclusive remedy for breach of this warranty is that Tempo Automation will, at Tempo Automation’s option: (i) repair the Product; (ii) replace the Product; or (iii) provide Customer with a credit or refund for the purchase price paid by Customer for the Product.  Modification of the Products after shipment voids this warranty.  Products may not be returned to Tempo Automation for warranty claims without Tempo Automation’s prior written authorization.
  • (b) Services Warranty. Tempo Automation warrants that it will perform the Services in a professional, workmanlike manner, consistent with industry standards, and in conformance in all material respects with the Specifications.  If the Services do not conform to this warranty and a valid claim is received by Tempo Automation within the Warranty Period, Customer’s sole and exclusive remedy for breach of this warranty is that Tempo Automation will, at Tempo Automation’s option: (i) correct the Services, (ii) re-perform the Services, or (iii) provide Customer with a credit or refund for the purchase price paid by Customer for the Services.
  • (c) Warranty Exclusions. These express warranties shall extend to Customer only and not to its customers or distributors or any other party.  Warranty claims are excluded to the extent they arise out of: (i) force majeure events or other external causes beyond Tempo Automation’s reasonable control; (ii) accident, misuse, or other use of the Products or Services outside of the normal operating conditions and environment or contrary to the Specifications or law; (iii) Directed-Buy Components, (iv) materials, parts, and components obtained under a BOM Order that are shipped to Customer (or its designee) and not incorporated by Tempo Automation into Products, or (v) third-party products or the actions or omissions of anyone other than Tempo Automation and its subcontractors.
  • (d) Warranty Disclaimers.  OTHER THAN THE EXPRESS WARRANTIES IN THIS SECTION 19, TEMPO AUTOMATION MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS OR SERVICES.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, TEMPO AUTOMATION EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, STATUTORY OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE.

20

Limitations of Liability

EXCEPT IN THE CASE OF A BREACH OF THE CONFIDENTIALITY OBLIGATIONS UNDER SECTION 16 (CONFIDENTIAL INFORMATION), IN NO EVENT SHALL A PARTY TO THE AGREEMENT BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR FOR DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF GOODWILL, LOSS OF DATA, OR INTANGIBLE LOSSES, UNDER ANY EQUITY, COMMON LAW, TORT, CONTRACT, ESTOPPEL, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY OF LIABILITY, REGARDLESS OF WHETHER THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING DAMAGES OR COULD HAVE FORESEEN SUCH DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF AN ESSENTIAL PURPOSE OF A LIMITED REMEDY OR WARRANTY.  EXCEPT WITH REGARD TO DAMAGES ARISING OUT OF A BREACH OF THE CONFIDENTIALITY OBLIGATIONS UNDER SECTION 16 (CONFIDENTIAL INFORMATION), IN NO EVENT SHALL THE AGGREGATE LIABILITY OF TEMPO AUTOMATION TO CUSTOMER EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY CUSTOMER TO TEMPO AUTOMATION UNDER THE ORDER OR ORDERS IN DISPUTE BETWEEN THE PARTIES.

21

Informed Allocation of Risks

The warranty disclaimers and limitations of liability set forth in these Terms shall apply irrespective of any failure of the essential purpose of any limited remedy.  Customer and Tempo Automation each acknowledges and agrees that the warranty disclaimers and limitations of liability provisions of these Terms reflect an informed, voluntary allocation between the Parties of the risks associated with the Agreement.  Customer further acknowledges that the estimated and actual fees and charges paid for the Products and Services reflect the allocation of risks in the warranty disclaimers and limitations of liability.  The warranty disclaimers and limitations of liability set forth in these Terms shall not apply to the extent prohibited by law, in which case the disclaimer or limitations shall be modified to disclaim warranties and/or limit liabilities to the maximum extent permitted by law.  To the extent required by law, the warranty disclaimers and limitations of liability set forth in these Terms shall not apply to claims due to fraud, bodily injury, or death.

22

Export Compliance

Customer and Tempo Automation shall comply with all applicable export restrictions and regulations of any U.S. agency or authority and foreign jurisdictions, including, but not limited to, the Export Administration Regulations (“EAR”) administered by the U.S. Department of Commerce, International Traffic in Arms Regulations (“ITAR”) administered by the U.S. Department of State, and embargo controls administered by the U.S. Department of the Treasury’s Office of Foreign Asset Controls (“OFAC”), with respect to technical data, Products, Services, and Tempo Software under the Agreement (collectively, “Export Laws”).  Customer agrees that it shall not export, re-export, or transfer (or permit the exportation, re-exportation, or transfer) of technical data, Products, Services, or Tempo Software without first obtaining all necessary licenses and approvals in accordance with Export Laws.  In order for Tempo Automation to conduct appropriate export control checks, Customer agrees to identify any export-controlled Products and Services (e.g., ITAR listed items) in writing to Tempo Automation at the time Customer submits a RFQ and to check any applicable box on the Site to designate the RFQ as involving ITAR listed items.  Customer agrees to provide to Tempo Automation prior to or at the time of the Quote all pertinent information pertaining to the particular end customer, destination, and intended use for any export-controlled Products and Services.  By requesting a Quote and entering into an Order with Tempo Automation for Products and Services that are export controlled, Customer is representing and warranting to Tempo Automation that it has obtained all necessary authorizations for those Products and Services under Export Laws (e.g., Defense Export Control and Compliance System (“DECCS”) registration and ITAR export licenses).  Tempo Automation disclaims any liability arising out of Customer’s failure to obtain proper authorizations under Export Laws for the Products and Services.  Tempo Automation reserves the right to stop shipping or providing Products, Services, and Tempo Software if Tempo Automation has reason to believe that any shipment or sale of Products, Services, or Tempo Software may violate Export Laws.

23

General Provisions

  • (a) Effectiveness of Terms. The Agreement, including these Terms, shall be effective on the Effective Date and shall continue in effect and apply to all subsequent Orders by Customer that are entered into by the Parties subject to these Terms.  The provisions of Sections 7, 9, 10, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, and 23 of these Terms shall survive any termination of the Agreement or an Order that is subject to these Terms.
  • (b) Force Majeure. In the event that a Party is prevented, hindered, or delayed from performing any of its obligations (except for payment obligations) due to any cause beyond its reasonable control, such as acts of God, fire, storm, flood, earthquake, or other natural disaster, acts of any government, trade sanctions, embargo, pandemics, epidemics, quarantines, war, riots, acts of terrorism, strikes or other labor actions, power failures or outages, energy shortages, shortages of materials, parts, or components, inability to obtain materials, parts, components, equipment, labor, or transportation, data breaches, cyberattacks, or interruption of internet or other communication methods, then the affected Party shall give written notice thereof to the other Party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.  In the event of any shortage of raw materials or other supplies, Tempo Automation may allocate materials and supplies among its customers in such manner as Tempo Automation may determine in its sole discretion, and Tempo Automation shall have no liability to Customer for any delay or cancellation of Orders on account thereof.
  • (c) Termination of Agreement. Either Party may terminate the Agreement and any Orders issued under it due to the other Party’s material breach of the Agreement or any Order under it that is not cured within fifteen (15) days of the breaching Party’s receipt of written notice of the breach alleged by the terminating Party (unless the terminating Party extends such cure period in writing).  Customer’s failure to pay when due money owed to Tempo Automation is a material breach of the Agreement.  If Orders are cancelled, in whole or in part, due to the termination of the Agreement for any reason, then Customer shall pay to Tempo Automation the Cancellation Payments for such Orders, pursuant to Section 15(d); provided further, that, the Cancellation Fee shall only be included in those Cancellation Payments if the cancellation of the Orders under this Section 23(c) is due to a material breach of the Agreement or the Orders by Customer.
  • (d) Governing Law; Venue. The Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S.A. applicable to contracts made in and fully performed in the State of California, U.S.A., without giving effect to conflict of law principles that would cause the application of laws of any other jurisdiction.  The United Nations Convention on Contracts for the International Sales of Goods shall not apply to the Agreement (including all Orders subject to these Terms).  Customer and Tempo Automation hereby consent to exclusive jurisdiction and venue in the state and federal courts located in the County of San Francisco, State of California, U.S.A. for resolution of any and all claims, causes of action, controversies, and disputes arising out of or relating to the Agreement, and they agree to submit to the personal jurisdiction of those courts for such purposes and hereby waive any objections thereto based on personal jurisdiction, venue, or forum non-conveniens.
  • (e) Time Limit on Claims. Any claim or cause of action arising out of the Agreement (including any Orders or these Terms) must be brought by you within one (1) year after the date the claim or cause of action accrues.
  • (f) Attorneys’ Fees. In any dispute between the Parties arising out of the Agreement, the prevailing Party shall be entitled to an award of its reasonable attorneys’ fees and costs.
  • (g) Federal Government Contracts. If an Order is a subcontract under a federal government contract or subcontract, Tempo Automation and Customer agree that the Products and Services provided by Tempo Automation to Customer under the Order constitute “commercial items” as defined in FAR 2.101, 48 C.F.R. § 2.101.  Tempo Automation represents that the Products and Services provided under such Order are priced at the same rate and in the same manner as Tempo Automation’s comparable commercial agreements for similar Products and Services and that such Products and Services are sold in the commercial marketplace, subject to modifications of a type customarily available in the commercial marketplace.
  • (h) Notices. Any notices provided under the Agreement shall be effective on the date personally delivered to a Party, or the next business day following deposit for delivery by means of overnight or express courier, or five days after the date of mailing, first class postage prepaid.  Unless changed by a Party providing written notice to the other Party, the address to send notices for Customer shall be the address provided when registering for a Tempo Automation account or, if no there is no account, then the address provided in the Order; and the address to send notices to Tempo Automation shall be: Tempo Automation, Inc., Attn: Legal Department, 2460 Alameda Street, San Francisco, California 94103.  Should Customer have any questions concerning these Terms, Customer may write to Tempo Automation at the above address, Attn: Legal Department, or send an email to Tempo Automation at support@tempoautomation.com.
  • (i) Integrated Agreement; Amendment. The Agreement (consisting of these Terms and the Orders) contains the entire understanding between Customer and Tempo Automation for the sale of Products and Services by Tempo Automation, and it supersedes any and all other prior and contemporaneous agreements, representations, promises, negotiations, and understandings of the Parties, whether oral or in writing, concerning the sale of Products and Services under the Orders, except for any non-disclosure agreement entered into between the Parties.  The Agreement may only be amended by a writing executed by both Parties; provided, however, that, (i) the Terms may only be amended by a writing executed by both Parties that specifically references the Terms and states that it is an amendment of the Terms, and (ii) Tempo Automation may modify or update the Terms on the Site, and such modified or updated Terms shall apply to all Orders of Customer accepted by Tempo Automation on or after the effective date of such modified or updated Terms, but will not apply to Orders of Customer that were accepted by Tempo Automation prior to such effective date, unless the Parties agree in writing to make them applicable to such Orders.
  • (j) Other Provisions. The Agreement shall bind and inure to the benefit of the Parties and their respective successors and assigns.  If any provision of the Agreement shall, for any reason, be held to be invalid or unenforceable, in whole or in part, then the invalid or unenforceable provision (or portion thereof) shall be deemed severed from the Agreement and such invalidity or unenforceability shall not affect or impair the validity or enforceability of the remaining provisions of the Agreement, which shall continue in full force and effect.  Any failure to enforce a provision of these Terms shall not be deemed a waiver of such provision or of the right to enforce such provision on any other occasion.  The headings of the Sections and subsections of these Terms are included for convenience only and shall not to be considered in construing and interpreting these Terms.  The English language version of all documents relating to the Agreement, including the Orders and these Terms, shall be the controlling version.

Tempo Automation, Inc. – October 2, 2021

Where we are located:

2460 Alameda Street, San Francisco, CA, 94103
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