License and Purchase Agreement
1. APPLICABILITY
(a) This License and Purchase Agreement (the “Agreement”), available at www.deepnight.com/standardterms, governs each Quote issued by Deepnight, Inc., a Delaware corporation, having offices at 2261 Market St, Suite 10041, San Francisco, CA 94114 (“Deepnight”) that incorporates this Agreement by reference (the “Quote”). The issuance of the Quote to the party identified as Customer in the Quote (the “Customer”) is an offer by Deepnight to provide Software, Deepnight Provided Hardware and/or related documentation (all as defined below and collectively, the ”Products”) to Customer in accordance with and subject to this Agreement and the terms and conditions set forth in the Quote. The Quote is not binding on either party until Customer accepts it by signing and returning the Quote or by issuing a purchase order based on the Quote, at which time the Quote and this Agreement become binding on both parties. By issuing a purchase order based on a Quote, Customer agrees to be bound by the terms of this Agreement. The Quote, together with this Agreement, is referred to herein as the “Order.”
(b) The Order, together with any documents incorporated by reference, constitutes the entire agreement of the parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, and communications, both written and oral, with respect to the subject matter of the Order. The Order expressly limits Customer’s acceptance to its terms and prevails over any terms contained in any other documentation. Any terms or conditions proposed by Customer, whether additional to or conflicting with this Agreement, including any of Customer’s general terms and conditions of purchase, order acknowledgments, invoices, or any other document issued by Customer in connection with the Order, are hereby expressly rejected and shall be null, void, and of no force or effect. No course of dealing, course of performance, acceptance of delivery, or payment by Deepnight shall be construed as acceptance of any such additional or conflicting terms. Any purported acceptance by Customer that is made conditional on Deepnight’s agreement to additional or different terms is rejected. In the event of any conflict or inconsistency between the terms of a Quote and the terms of this Agreement, the terms of the Quote shall govern and control with respect to that Order, but only to the extent of such conflict or inconsistency.
2. DESCRIPTION OF THE PRODUCTS AND NRE SERVICES
(a) Generally. Deepnight develops and licenses low-light image-processing and related software (the “Software”), which may be utilized in connection with hardware, including processors, development kits, sensors, cameras, or related products, that is provided by Deepnight pursuant to an Order (the “Deepnight Provided Hardware”) or provided by Customer and designated for use with the Software pursuant to the Order (the “Designated Hardware,” and together with the Deepnight Provided Hardware, “Hardware”). “Compute Hardware” means Hardware that is capable of executing, running, or hosting the Software; all Designated Hardware is Compute Hardware. Deepnight shall make the Products specified in an Order available to Customer pursuant to the terms and conditions of this Agreement. “Documentation” means Deepnight’s printed or online written end user guides, specifications and Deepnight documentation made available to Customer in conjunction with the Software or Hardware and includes any custom specifications for the Products that are agreed to by Deepnight in writing (“Custom Specifications”). In the event of any conflict or inconsistency between Custom Specifications and Deepnight’s general or standard Documentation, the Custom Specifications shall govern and control to the extent of such conflict or inconsistency.
(b) License Scope and Quantities. Except as expressly set forth in a Quote, one license is required per unit of Compute Hardware (or per device or instance on which the Software is installed). Customer shall not exceed the license quantities or usage limits specified in the Quote. This Agreement does not grant rights to additional, separate, or future software modules or any add-on features released after the date of the Order. “Territory” means the geographic territory specified in the applicable Quote or, if no territory is specified in the Quote, worldwide (subject in all cases to Section 14 (Compliance with Laws and Export Controls)).
(c) Non-Recurring Engineering. Deepnight has no obligation to perform any non-recurring engineering, custom development, integration, or similar services (“NRE Services”) unless and except to the extent expressly specified in a Quote. Where a Quote specifies NRE Services, Deepnight shall perform such NRE Services as described in, and subject to the fees, scope, and any milestones, deliverables, or acceptance criteria set forth in, that Quote. NRE Services are provided on a commercially reasonable efforts basis and, except as otherwise expressly stated in the applicable Quote, any work product, deliverables, designs, modifications, or other results of NRE Services (“NRE Results”) constitute Software, Documentation, and/or Deepnight Provided Hardware (as applicable) for purposes of this Agreement. Fees for NRE Services are payable in accordance with Section 7 and the applicable Quote and, once paid, are non-refundable. Ownership of all intellectual property in and to NRE Results is governed by Section 8(a), notwithstanding payment of any NRE fees by Customer.
3. LICENSES
(a) Engineering Samples. If a Quote specifies that the Products are engineering samples (“Engineering Samples”), the following license applies: Subject to the terms and conditions of this Agreement, including timely payment of all applicable fees, Deepnight grants Customer a limited, non-exclusive, non-transferable, and non-sublicensable perpetual license in the Territory solely to reproduce the Software, in object code form only, on the Compute Hardware specified in the Quote, for internal evaluation purposes. Customer shall not copy the Software, deploy it in production or in any fielded or shipped units, or sell, resell, distribute or otherwise transfer the Engineering Samples. NOTWITHSTANDING SECTION 10 (REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS), ENGINEERING SAMPLES (INCLUDING ANY SOFTWARE AND HARDWARE PROVIDED AS ENGINEERING SAMPLES) ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY OF ANY KIND.
(b) Production Licenses. If a Quote specifies that the Products (whether Software only or Software and Hardware together) are authorized for production use (as applicable, “Production Software,” “Production Hardware,” and/or “Production Products”), the following license applies: Subject to the terms and conditions of this Agreement, including timely payment of all applicable fees, Deepnight grants Customer a limited, non-exclusive, non-transferable, and non-sublicensable perpetual license in the Territory solely to: (i) reproduce the Software in object code form only on the Compute Hardware specified in the Quote for purposes of developing and manufacturing products made by Customer that bundle or otherwise incorporate the Software with the Compute Hardware (“Integrated Products”); (ii) use the Software internally for testing, servicing, and supporting the Integrated Products, and reproduce the Software in the quantities and to the extent necessary for these purposes; and (iii) incorporate the Documentation, in whole or in part, into the documentation for the Integrated Products, reproduce such quantities of the Documentation as are necessary solely for purposes of such incorporation, and distribute to end users such Documentation as incorporated in the Integrated Product documentation.
(c) If the quote specifies that one or more of the Products to be provided to Customer are loaner units (“Loaned Products”), the following license applies: Subject to the terms and conditions of this Agreement, including timely payment of all applicable fees, Deepnight grants Customer a limited, non-exclusive, non-transferable, and non-sublicensable license in the Territory to install and use the Software in object-code form only, solely (i) for Customer’s internal evaluation purposes, (ii) on the Compute Hardware specified in the Quote, and (iii) during the period set forth in the Quote (or if no such period is specified in the quote, 30 days after delivery of the Loaned Products) (the “Loan Period”). Deepnight makes the Loaned Products available to Customer on a bailment basis during the Loan Period. Title to the Loaned Products shall remain with Deepnight at all times, and Customer shall acquire no interest therein except the right to use the Loaned Products for the evaluation. Risk of loss for the Loaned Products shall pass to Customer upon Deepnight’s delivery of the Loaned Products to Customer, and shall remain with Customer until Customer’s return of the Loaned Products to Deepnight. Customer shall evaluate the Loaned Products only at the address specified in the quote. Customer shall make no other use of the Loaned Products whatsoever. Customer shall not disclose to any party, any information, benchmark, test, report, or description relating to or derived from the use of the Loaned Products. Deepnight may terminate the evaluation and Customer’s rights to use the Loaned Products at any time upon notice to Customer. Upon termination or expiration of the Loan Period, Customer shall have no rights to possess or use the Loaned Products and shall immediately return the Loaned Products to Deepnight, in the same condition and repair, less reasonable wear and tear, as Deepnight provided the Loaned Products to Customer. Customer shall deliver the Products DAP to the Deepnight address specified in the Quote. NOTWITHSTANDING SECTION 10 (REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS), LOANED PRODUCTS (INCLUDING ANY SOFTWARE AND HARDWARE PROVIDED AS LOANED PRODUCTS) ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY OF ANY KIND.
4. USE OF THE PRODUCTS
(a) Right to Use the Documentation and Hardware. Subject to Customer’s compliance with this Agreement, Deepnight grants to Customer a personal, limited, non-exclusive, non-transferable, non-sublicensable license to use the Documentation solely in connection with Customer’s authorized use of the Software and Hardware. Title to any Deepnight Provided Hardware purchased by Customer passes to Customer upon full payment, subject to the export and use restrictions in this Agreement; the Software installed on or provided with such Deepnight Provided Hardware remains licensed, not sold. Customer is solely responsible for all activity that occurs through its use of the Products and shall comply with all laws, regulations, rules, ordinances and government orders (“Laws”) applicable to its use of the Products and Documentation.
(b) Customer’s Responsibilities in Using the Products. Customer shall (1) use the Products only in accordance with this Agreement and applicable Laws; (2) be responsible for Customer’s users’ compliance with this Agreement; and (3) prevent unauthorized access to or use of Products, and notify Deepnight promptly of any such unauthorized access or use. Customer is responsible for all activity arising from its use of the Products, regardless of whether such activity is authorized by Customer.
(c) Restrictions. Customer shall not, and it shall not permit, assist, authorize or encourage any third party to:
(i) except as set forth in Section 3(b) with respect to Production Products, sell, resell, license, sublicense, distribute, copy, reproduce, rent or lease any Product, or otherwise make any Product available to, or use any Product for the benefit of, anyone other than Customer;
(ii) access any Product to build a competitive product or service, or for any other benchmarking or competitive purposes;
(iii) use any Product to store or transmit (1) infringing, libelous, or otherwise unlawful or tortious material, (2) material in violation of third-party privacy rights, or (3) code, files, scripts, agents or programs intended to do harm, including without limitation viruses, worms, time bombs, Trojan horses, malware, vulnerabilities, advanced persistent threats, exploits, code injections and targeted attacks;
(iv) disrupt, disable, or interfere with the integrity or performance of any Product;
(v) circumvent or attempt to circumvent any license, usage, or technical limitations of any Product, including any license keys, activation limits, metering, or other access or copy controls;
(vi) copy, modify, translate, adapt, merge, or make derivative works of any Product;
(vii) everse engineer, decompile, disassemble, or otherwise reduce to human perceivable form any Software or any other software made available via any Product, except and only to the extent that such activity is expressly permitted by applicable Law notwithstanding this limitation;
(viii) remove or alter Deepnight’s copyright notices, trademarks or other proprietary rights notices affixed to or contained within any Product;
(ix) use any Product to violate any applicable Law.
(d) Open Source. The Products may include programs or code that are licensed under an open source software (“OSS”) license model. OSS programs and code are licensed under and are subject to the terms and conditions of the applicable OSS license, and are specifically excluded from all license grants, warranty and support obligations described in this Agreement. Nothing in this Agreement limits Customer’s rights under, or grants rights that supersede, the terms and conditions of any applicable end user license for the OSS. If required by any license for particular OSS, Deepnight makes such OSS, and Deepnight’s modifications to that OSS, available by written request at its principal business address.
5. CUSTOMER DATA AND TEST DATA
(a) Any customer data or other data, datasets, recordings, imagery or materials that Customer or its end users share with or make available to Deepnight for testing, evaluation, integration, benchmarking, training, validation, debugging or support purposes (“Test Data”) may be retained and used by Deepnight on a perpetual, irrevocable, worldwide, royalty-free, sublicensable basis for any purpose and without restriction, including to operate, develop, train, validate and improve Deepnight’s products, models and technology. Deepnight retains all right, title and interest in and to all Test Data so shared and all derivatives, analyses and models derived therefrom.
(b) Customer grants to Deepnight a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Products any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or its users relating to the Products.
6. INSPECTION OF GOODS; DELIVERY; TITLE AND RISK OF LOSS
(a) Inspection. Customer shall have thirty (30) days from the date of receipt of the Products to inspect and conduct acceptance testing. Customer may reject Products only by written notice delivered within that thirty (30) day period specifying in reasonable detail the claimed nonconformity. Products shall be deemed accepted upon the earlier of (i) expiration of the thirty (30) day period without such written notice or (ii) Customer's deployment or productive use of the Products.
(b) Delivery. Unless otherwise specified in the Quote, Deepnight shall deliver Deepnight Provided Hardware FCA (Incoterms 2020) Deepnight’s facility or other point of shipment designated by Deepnight. Customer shall be responsible for all freight, shipping, handling, insurance, customs, duties, and other costs and charges associated with delivery and transport. Deepnight may select the carrier and method of shipment unless Customer specifies otherwise in writing and bears any resulting additional cost. Deepnight may make partial or installment deliveries, each of which shall constitute a separate sale, and Customer shall pay for the units shipped whether or not the shipment is in full or partial fulfillment of an Order.
(c) Title and Risk of Loss. Risk of loss for Deepnight Provided Hardware passes to Customer upon delivery of the Deepnight Provided Hardware to the carrier at the point of shipment. Title to Deepnight Provided Hardware (except with respect to Loaned Products) passes to Customer upon Deepnight’s receipt of payment in full for such Deepnight Provided Hardware, subject to the export and use restrictions in this Agreement; the Software installed on or provided with such Deepnight Provided Hardware remains licensed, not sold. Until title passes, Customer shall hold the Deepnight Provided Hardware as bailee, and Deepnight shall be entitled to all rights of a secured party with respect to the Deepnight Provided Hardware to secure payment of the amounts due.
(d) Delivery Dates. Any delivery dates or lead times provided by Deepnight are estimates only. Deepnight shall use commercially reasonable efforts to meet estimated delivery dates but shall not be liable for, and Customer shall have no right to reject Products or cancel any Order on account of, any delay in delivery. Customer shall be responsible for any storage, demurrage, or similar costs resulting from Customer’s failure to accept delivery when tendered.
7. FEES AND PAYMENT; AUDIT
(a) Fees, Royalties and Payment. Customer shall pay all fees and royalties specified in the Quotes. Following acceptance of the Products in accordance with Section 6(a), except as otherwise specified in a Quote, (i) fees and royalties are based on the licenses and Products ordered and (ii) payment obligations are noncancelable and amounts paid are non-refundable. Where a Quote provides for royalty reporting, Customer shall report deployments and activations and remit payment as specified in the Quote. Unless otherwise stated in the Quote, invoiced charges are due net forty-five (45) days from the invoice date. If any invoiced amount is not received by the due date, then without limiting other rights or remedies, those amounts may accrue late interest at the rate of 1.5% per month or the maximum rate permitted by law, and Deepnight may suspend further license activations and deliveries.
(b) Taxes. All amounts payable by Customer do not include any levies, duties, similar governmental assessments of any nature, value-added, use, withholding or other taxes (other than sales tax), assessable by any jurisdiction whatsoever (collectively, “Taxes”). Applicable sales tax shall be a separate line item on invoices issued to Customer. Unless Customer provides Deepnight with a valid tax exemption certificate authorized by the appropriate taxing authority, Customer shall pay the sales tax amount. Customer is responsible for paying all Taxes, and any related penalties and interest, associated with the fees and Products. Customer shall make all payments free and clear of, and without reduction for, any Taxes. If Deepnight has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Deepnight will invoice Customer and Customer shall pay such amounts unless Customer provides Deepnight with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer shall indemnify and hold Deepnight harmless from any claims, losses, costs (including reasonable attorneys’ fees), damages or liabilities arising out of or relating to Customer’s failure to pay any Taxes or sales tax as set forth in this Section. Deepnight is solely responsible for taxes on Deepnight’s income, property and employees.
(c) Audit. Customer shall maintain complete and accurate records sufficient to verify its compliance with this Agreement and the calculation of all fees and royalties. Upon reasonable prior written notice, and no more than once per calendar year, Deepnight may audit such records and Customer’s use of the Products to verify compliance. If any audit reveals an underpayment, Customer shall promptly pay the shortfall, and if the underpayment exceeds five percent (5%), Customer shall also reimburse Deepnight’s reasonable costs of the audit.
8. PROPRIETARY RIGHTS
(a) Reservation of Rights; IP Retention. Deepnight is the sole owner of the Software, the Documentation, all Deepnight Provided Hardware designs and technology, and all intellectual property rights in or to any of the foregoing. Deepnight retains all right, title and interest in and to the Software and all modifications, improvements, and derivative works thereof, regardless of whether such modifications were requested, suggested, or specified by Customer (including based on Customer feedback), and even if any non-recurring engineering (NRE) fees were paid by Customer; provided, however, that Deepnight claims no ownership of Customer’s pre-existing hardware that Customer designates and provides for use with the Software. Deepnight further retains all right, title and interest in and to the data and datasets, including Test Data, used to train, validate or improve its models. Subject to the limited rights expressly granted hereunder, Deepnight and its licensors reserve all right, title and interest in and to the Products. No rights are granted to Customer other than as expressly set forth herein.
9. CONFIDENTIALITY
(a) Definition. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of its disclosure. Deepnight’s Confidential Information includes the Products and pricing. Confidential Information of each party includes the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (1) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (2) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (3) is received from a third party without breach of any obligation owed to the Disclosing Party, or (4) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
(b) Protection of Confidential Information. The Receiving Party shall (1) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (2) not disclose any Confidential Information of the Disclosing Party to any third party without the Disclosing Party’s prior written consent, except as otherwise permitted by this Section 9, (3) use the same degree of care to protect the Confidential Information of the Disclosing Party that the Receiving Party uses to protect the confidentiality of its own like confidential information (but not less than reasonable care), and (4) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. The Receiving Party may disclose the terms of this Agreement or any Quote to its legal counsel and accountants, and to its current and prospective investors and financing sources, and their respective legal counsel and accountants, and the Receiving Party shall be responsible for the compliance of such entities with this Section 9.
(c) Compelled Disclosure. The Receiving Party may preserve and disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so or in a good faith belief that such preservation or disclosure is reasonably necessary to comply with legal process or protect the rights, property or personal safety of the public. The Receiving Party shall give the Disclosing Party prompt notice of the compelled disclosure (to the extent legally permitted). If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil or criminal claim, action or proceeding to which the Disclosing Party is a party, the Disclosing Party shall reimburse the Receiving Party for its reasonable costs of compiling and providing secure access to that Confidential Information.
10. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS
(a) Software Warranty. Except for Engineering Samples and Loaned Products, which are provided “AS IS” without warranty, Deepnight warrants that, for a period of one (1) year following Customer’s acceptance of the Software (the “Warranty Period”), the Software will materially conform to the Documentation for that release when operated on the supported hardware configuration specified in the Quote and in accordance with the Documentation. Customer’s sole and exclusive remedy, and Deepnight’s entire liability, for any breach of this warranty shall be, at Deepnight’s option, to (a) repair or replace the non-conforming Software or (b) refund the license fees paid for the affected licenses. Deepnight shall have no warranty obligation for defects caused by Customer’s modification or misuse of the Software (including use that does not comply with the Documentation), or by combination of the Software with hardware, software or systems not approved by Deepnight in writing.
(b) Hardware Warranty. Where a Quote includes Deepnight Provided Hardware and the Deepnight Provided Hardware is not designated as an Engineering Sample, Deepnight warrants that, for the same one (1) year Warranty Period following acceptance of the applicable Software, the Deepnight Provided Hardware will materially conform to its specifications set forth in the Documentation or Quote. Customer’s sole and exclusive remedy, and Deepnight’s entire liability, for any breach of this warranty shall be, at Deepnight’s option, to repair or replace the non-conforming Deepnight Provided Hardware or refund the fees paid for the affected Deepnight Provided Hardware. This warranty does not apply to Deepnight Provided Hardware that has been modified, misused, damaged, or combined with items not approved by Deepnight in writing.
(c) Disclaimers. Deepnight PROVIDES THE PRODUCTS “AS IS” (EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION 10). CUSTOMER’S USE OF THE PRODUCTS IS AT CUSTOMER’S OWN RISK. DEEPNIGHT MAKES NO WARRANTY REGARDING RESULTS THAT MAY BE OBTAINED FROM CUSTOMER’S USE OF THE PRODUCTS. EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN SECTION 10 ABOVE, DEEPNIGHT DOES NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. DEEPNIGHT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
11. INDEMNIFICATION
(a) Indemnification by Deepnight. Deepnight shall defend Customer against any claim, demand, suit or proceeding (“Claim”) brought against Customer by a third party alleging that the use of Software infringes or misappropriates such third party’s copyright or trade secret rights, and shall indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts under a court-approved settlement of, such a Claim. If Deepnight receives information about an infringement or misappropriation claim related to a Product, Deepnight may in its discretion and at no cost to Customer (1) modify the Product so that it no longer infringes or misappropriates, without breaching the warranty under Section 10(a) (Software Warranty), (2) obtain the necessary rights for Customer’s continued use of that Product in accordance with this Agreement, or (3) terminate the license for the affected Product upon 30 days’ written notice and refund Customer the fees paid for that Product, less a reasonable allowance for the period of Customer’s use. Deepnight shall not be obligated to defend or indemnify Customer pursuant to this Section for any Claim arising from Customer’s breach of this Agreement. This Section 11(a) states Deepnight’s sole liability to, and Customer’s exclusive remedy against Deepnight, for any claim of intellectual property infringement.
(b) Indemnification by Customer. Customer shall defend Deepnight against any Claim brought against Deepnight by a third party in connection with (i) Customer’s breach of this Agreement, or (ii) Customer’s violation of any applicable Law, and shall indemnify Deepnight from any damages, attorney fees and costs finally awarded against Deepnight as a result of, or for any amounts paid under a court-approved settlement of, such a Claim. Customer shall not be obligated to defend or indemnify Deepnight pursuant to this Section for any Claim that is the responsibility of Deepnight pursuant to Section 11(a) above.
(c) Procedures. The party seeking indemnification for a Claim under this Section 11 agrees that it shall give the indemnifying party (1) prompt written notice of the Claim, (2) sole control of the defense and settlement of the Claim (except that the indemnifying party may not settle any Claim unless it unconditionally releases the indemnified party of all liability), and (3) all reasonable assistance, at the indemnifying party’s request and expense, in the defense and settlement of the Claim.
12. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL DEEPNIGHT, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) DAMAGES, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT DEEPNIGHT HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. DEEPNIGHT’S AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE PRODUCTS OR THIS AGREEMENT WILL AT ALL TIMES BE LIMITED TO THE AMOUNTS CUSTOMER PAID TO DEEPNIGHT FOR THE AFFECTED PRODUCT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM. THESE LIMITATIONS ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DEEPNIGHT AND CUSTOMER.
13. TERM AND TERMINATION
(a) Term of Agreement. This Agreement commences on the date the first Quote is accepted by Customer, whether by signing and returning the Quote or by issuing a purchase order based on the Quote (the “Effective Date”), and continues until terminated in accordance with Section 13(b). The licenses granted under each Quote are perpetual unless otherwise stated in the applicable Quote or terminated in accordance with this Agreement, and the termination or expiration of any individual Quote shall not by itself terminate this Agreement.
(b) Termination. A party may terminate this Agreement for cause (1) upon 30 days written notice to the other party of a material breach if such breach is curable and remains uncured at the expiration of such period, (2) immediately upon written notice to the other party of a material breach that is not curable, or (3) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
(c) Effects of Termination. Upon termination or expiration for any reason (1) any amounts owed to Deepnight before such termination or expiration will be immediately due and payable, (2) Engineering Sample and unexpired development licenses will immediately cease, and Customer must discontinue use of and, at Deepnight’s option, return or destroy the Engineering Samples, and (3) Customer shall immediately cease installation of the Software on any new or in-process units. Units already sold or deployed with Production Software prior to termination may continue to be used for the remainder of the applicable Hardware’s life cycle, subject to Customer’s continuing payment of all royalties due. Within thirty (30) days of termination, Customer shall provide a final report and full payment for all unpaid fees and royalties. The following provisions shall survive any termination of this Agreement: 3(a) (Engineering Samples), 3(b) (Production Licenses), 4 (Use of the Products), 5 (Customer Data and Test Data), 7 (Fees and Payment, including Audit), 8 (Proprietary Rights), 9 (Confidentiality), 10 (Representations, Warranties, and Disclaimers), 11 (Indemnification), 12 (Limitation of Liability), 13(c) (Effects of Termination), 14 (Compliance with Laws and Export Controls), 15 (Governing Law) and 16 (General Terms).
14. COMPLIANCE WITH LAWS AND EXPORT CONTROLS
The export classification of any Hardware (including any export-controlled camera) is set forth in the Quote, and Customer shall honor and comply with that classification and all associated end-use, end-user, destination and re-export restrictions, including any controls applicable to the camera’s export rating. Each party shall promptly notify the other party in writing of any change to a stated classification for Hardware provided by such party. Each party shall comply with all applicable U.S. and non-U.S. export control, economic sanctions, anti-corruption, anti-boycott and import laws and regulations (“Trade Control Laws”) in connection with its performance under this Agreement. Customer acknowledges that integration of the Software or Hardware into Customer’s products may render the integrated product subject to International Traffic in Arms Regulations (“ITAR”), U.S. Export Administration Regulations (“EAR”), or other export controls, and Customer shall be solely responsible for the export classification, licensing and compliance obligations applicable to its integrated products. Notwithstanding anything to the contrary and without limiting the foregoing, Customer shall not, directly or indirectly, export, re-export, transfer, release, sell, or otherwise provide access to the Products or any Deepnight technology to: (a) the People’s Republic of China, including Hong Kong and Macau (this prohibition being absolute and not subject to any license, authorization, or exception); (b) any country or region subject to U.S. comprehensive embargoes or sanctions, or designated by the U.S. Government as a state sponsor of terrorism or as supporting terrorism; or (c) any person or entity on the U.S. Specially Designated Nationals List, Denied Persons List, Entity List, Unverified List, or any other denied or restricted party list, in each case without first obtaining all required governmental authorizations (and, with respect to clause (a), under no circumstances). Customer represents and warrants that it is not located in, organized under the laws of, or owned or controlled by any party in, any such prohibited destination, and is not a restricted party. Customer also will not use the Products for any purpose prohibited by Law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. This Section survives termination.
15. GOVERNING LAW.
This Agreement, and any matter arising out of or related to this Agreement, shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to any conflict of laws principles that would require the application of the laws of another jurisdiction. Any dispute arising under or in connection with this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in the State of Delaware, and each party hereby expressly and irrevocably consents, and waives any objection, to the personal jurisdiction, venue and convenience of such courts.
16. GENERAL TERMS.
This Agreement constitutes the entire agreement between Deepnight and Customer with respect to the Products and supersedes and replaces any other agreements, terms and conditions applicable to the Products. A purchase order issued by Customer based on a Quote operates solely as Customer's acceptance of the Quote and this Agreement, and any terms stated in Customer’s purchase order shall have no force or effect. This Agreement may be amended only upon written agreement of both parties. This Agreement creates no third-party beneficiary rights. Deepnight’s failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable the remaining provisions of this Agreement will remain in full effect and an enforceable term will be substituted reflecting the intent as closely as possible. Customer may not assign any of Customer’s rights in this Agreement, and any such attempt is null and void. Deepnight may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Products. The parties hereto are independent contractors. Deepnight will not be responsible for any failure to perform or delay in performing any of its obligations under this Agreement to the extent that such failure or delay results directly or indirectly from an event beyond Deepnight’s reasonable control. If Customer is a U.S. government entity, Customer acknowledges that any Products provided are “Commercial Items” as defined at 48 C.F.R. 2.101, and are being provided as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212. Notices by Customer shall be deemed delivered when received by Deepnight by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address. Customer (1) consents to receive communications from Deepnight in an electronic form; and (2) agrees that all notices and other communications provided by Deepnight electronically satisfy any legal requirement that such communications would satisfy if they were to be in writing. In the event that the last e-mail address Customer provided to Deepnight is not capable of delivering to Customer any notices required by this Agreement, Deepnight’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice as of the date sent.