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

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.

3

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 that shall apply, 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 Acceptance (the “Acceptance”), and the Order incorporates these Terms (including the Terms of Use and the Privacy Policy) and is governed by them.  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 manuals or policies, or Customer’s website.

4

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.

5

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.

6

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 our approved vendors.  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 one of our approved vendors.  Tempo Automation makes no representations or guarantees as to usability, manufacturing readiness, processability, or performance of, the use of conflicts materials in, or the country of origin or genuineness of consigned components or components purchased from a supplier that is not one of our approved vendors.

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 on-site visits or customer involvement in the manufacturing and assembly process for Products.

7

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.

8

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 a form of prepayment acceptable to Tempo Automation.  Upon credit approval of Customer, Tempo Automation, acting in its sole discretion, may agree to invoice Customer for Products and Services instead of requiring prepayment.  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.

9

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.  Tempo Automation will use commercially reasonable efforts to meet agreed delivery dates, but unavailability of components, yield loss, deficiencies in the Build Information, changes made to the Order, or other circumstances may affect the delivery dates.  Tempo Automation may deliver partial shipments, and you agree to accept them.  Unless otherwise provided in the Order, all parts are shipped Ex Works Tempo Automation’s facility (Incoterms 2020).  Title and risk of loss pass to the Customer at the time and place of delivery to the carrier.  Customer is responsible for obtaining insurance covering loss of or damage to Products during shipment.  Unless we otherwise agree in writing, packaging of all Products is pursuant to our standard packaging.  Shipment of all Products within the United States is via overnight courier, with the courier selected by us and the shipment costs paid by you.  For any shipment of Products 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.

10

Post-Order Changes

Once an Order has been placed, it cannot be changed without obtaining Tempo Automation’s written consent (such changes consented to by Tempo Automation in writing are referred to as “Post-Order Changes”).  Post-Order Changes may cause delays in delivery dates.  Customer shall be responsible for any additional costs of Products or Services due to Post-Order Changes.

11

Holds and Cancellations of Orders

Requesting that a hold be placed on an Order for longer than forty-eight (48) hours or that an Order be cancelled, in whole or in part, requires that the Parties enter into a Post-Order Change and Customer pay the fees under this Section 11.  The fees for holds (beyond forty-eight (48) hours) or cancellations of Orders will vary in amount, depending on the manufacturing stage the Order is in at the time of Customer’s hold or cancellation request (e.g., design stage, materials procurement, setup on feeders and trolleys, surface mount technology (“SMT”) stage, or post-SMT stage).

  • (a) Hold Fees. If Customer places a hold for more than forty-eight (48) hours on an Order, Tempo Automation may break down any setup for the Order and will charge Customer a fee for the suspension of work 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.  If an Order remains on hold for more than thirty (30) days, then Tempo Automation may cancel the Order and invoice Customer for (i) the Hold Fee, (ii) the invoice price for all Products and Services completed on or before the date the hold was placed, and (iii) a percentage of the invoice amount for partially completed Products and Services reflecting the approximate percentage of the work completed and the cost of components and materials Tempo Automation acquired for the Order (not to exceed the invoice price for the affected Products), except for those components, materials, and partially completed Products that Tempo Automation is reasonably able to re-purpose or re-sell.  Upon Customer’s payment of the invoice, Tempo Automation shall ship to Customer, at Customer’s expense, the completed and partially completed Products, components, and materials, Ex Works Tempo Automation’s facility (Incoterms 2020).
  • (b) Cancellation Fees. If Customer cancels an Order, in whole or in part, Tempo Automation will break down any setup for the cancelled Order and will charge Customer a fee for the cancellation of the work (the “Cancellation Fee”) and a portion of the invoice amount for the work undertaken prior to the cancellation.  The amount of the Cancellation Fee will depend on the manufacturing stage that the Order is in at the time of the cancellation request.  Tempo Automation shall invoice Customer for (i) the Cancellation Fee, (ii) the invoice price for all Products and Services completed on or before the date of cancellation, and (iii) a percentage of the invoice amount for partially completed Products and Services reflecting the approximate percentage of the work completed and the cost of components and materials Tempo Automation acquired for the Order (not to exceed the invoice price for the affected Products), except for those components, materials, and partially completed Products that Tempo Automation is reasonably able to re-purpose or re-sell.  Upon Customer’s payment of the invoice, Tempo Automation shall ship to Customer, at Customer’s expense, the completed and partially completed Products, components, and materials, Ex Works Tempo Automation’s facility (Incoterms 2020).

12

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 12 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 the terms of that non-disclosure agreement shall govern the disclosure of Confidential Information between the Parties instead of the provisions of this Section 12.
  • (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) entered 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) was 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) was 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) 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.

13

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, 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 this 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 13(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.

14

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 (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 Regulations (“DFAR”), 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.

15

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 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; or (iii) 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 15, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS OR SERVICES.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, SELLER 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.

16

Limitations of Liability

EXCEPT IN THE CASE OF A BREACH OF THE CONFIDENTIALITY OBLIGATIONS UNDER SECTION 12, IN NO EVENT SHALL A PARTY TO THIS 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 12, 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.

17

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.

18

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.

19

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 for which Tempo Automation issues its Acceptance subject to these Terms.  The Agreement shall continue in effect until either Party gives ten (10) days’ written notice of termination to the other Party.  The provisions of Sections 8, 11, 12, 13, 14, 15, 16, 17, 18, and 19 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, component or material shortages, inability to obtain materials, 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) 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.
  • (d) 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.
  • (e) 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.
  • (f) 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.
  • (g) 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.
  • (h) Headings. 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.
  • (i) Other Terms. The Agreement shall bind and inure to the benefit of the Parties and their respective successors and assigns.  The Agreement (consisting of the Orders and these Terms) 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 subject matter hereof, 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 further that, these Terms may only be amended by a writing executed by both Parties that specifically references these Terms and states that it is an amendment of these Terms.  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.  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.  The English language version of all documents relating to the Agreement, including the Orders and these Terms, shall be the controlling version.

Where we are located:

2460 Alameda Street, San Francisco, CA, 94103
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