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.
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.
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.
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.
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.
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).
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:
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:
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.
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.
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.
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.
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.
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.
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.
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.
Tempo Automation, Inc. – October 2, 2021