1. Scope of the general terms and conditions and terms of use
1.1. These General Terms and Conditions and Terms of Use (“GTCs”) shall govern all agreements between CesiumAstro Inc., a corporation organized and existing under the laws of Delaware, USA, with an address at 13412 Galleria Circle, Suite H-100, Austin, TX 78738 (“CesiumAstro”), on the one hand, and the customer signing and accepting below (“Customer”), on the other hand. The GTCs are incorporated by reference into CesiumAstro’s Fixed Price quotes (each a “Quote”), and must be agreed to by Customer as a condition to the Quote. The Effective Date of these GTCs shall be the date signed by Customer in its acceptance below. The Customer and CesiumAstro are each referred to herein individually as a “Party” and collectively as the “Parties.”
1.2. Neither CesiumAstro nor Customer is, nor shall Customer (or its downstream end-users) become, at anytime while using CesiumAstro products, a Prohibited Person. As used in these GTCs, “Prohibited Person” means a natural person or legal entity
i) subject to a prohibition(including economic, financial and/or travel prohibitions) or other restrictive measures or sanctions by any government or inter-governmental organization, including but not limited to, (a) the United Nations Security Council Sanctions Committee, (b) under the lists maintained by the European Union’s European External Action Service designed to implement the EU’s Common Foreign and Security Policy, and (c) the country of residence or organization of such person, or
ii) subject to the Foreign Corrupt Practices Act and economic sanctions and export controls administered by the U.S. Department of the Treasury and the U.S. Department of Commerce, or
iii) that transacts or otherwise deals, directly or indirectly, with or is otherwise related to an Embargoed Jurisdiction or Sanctioned Person or that exports or reexports, directly or indirectly, in violation of any applicable US laws or regulations, or otherwise uses the Content for any prohibited purpose.
Content means any regulated data or other material that is transmitted by CesiumAstro in connection with these GTCs.
Embargoed Jurisdiction means a country, region, territory or government with respect to which the U.S. government imposes a trade or investment embargo from time to time.
Sanctioned Person means any person with respect to which or whom U.S. citizens are generally forbidden to transact under economic sanctions including, without limitation, a person on the List of Specially Designated Nationals and Blocked Persons.
Customer agrees to comply fully with the applicable export/import or comparable laws and regulations, including but not limited to the United States Government’s Department of State International Traffic in Arms Regulations (ITAR), and the Department of Commerce (15 CFR §§730-774) Export Administration Requirements (EAR), as applicable, and to complete all required undertakings (including obtaining any necessary export license or other governmental approval) prior to exporting, re-exporting, releasing, or otherwise making the Products available outside the US. These GTCs and any Agreement with CesiumAstro shall be subject to and at all times shall only be applied and interpreted in compliance with all applicable laws and government security requirements binding upon or otherwise affecting the Parties.
1.3. These GTCs shall govern the relationship of the Parties in all respects unless and only to the extent that the Parties expressly agree otherwise in a signed writing which specifically references modifying or amending these GTCs. Unless so expressly specified inwriting, these GTCs shall govern and are hereby incorporated by reference into any and all requests for quotations, acceptances, purchase orders or other agreements, correspondence or arrangements between the Parties (whether written or oral). In the event of any conflict between any of the foregoing and the terms and conditions of the GTCs, the terms and conditions of the GTCs shall control and prevail as between the Parties unless expressly agreed in writing otherwise between the parties. ALTHOUGH CUSTOMER MAY SUBMIT PURCHASE ORDERS OROTHER DOCUMENTS ON CUSTOMER’S FORMS, CUSTOMER EXPRESSLY AGREES THATCESIUMASTRO’S ACCEPTANCE OF SUCH FORMS IS SOLELY FOR CUSTOMER’S CONVENIENCE ANDTHAT ANY DIFFERENT OR ADDITIONAL TERMS OR CONDITIONS SET FORTH ON ANY PURCHASEORDER OR OTHER DOCUMENT SUBMITTED BY CUSTOMER SHALL NOT APPLY AND SHALL BE VOIDAND OF NO EFFECT.
1.4. For avoidance of doubt, these GTCs supersede any and all prior or contemporaneous oral discussions, agreements, negotiations, arrangements or understandings between the Parties concerning the subject matter of these GTCs.
1.5. CesiumAstro reserves the right, from time to time at its discretion to update, amend or otherwise supplement these GTCs, and as to orders for Products placed after any such updates, amendments or supplements Customer shall be bound by and subject to the GTCs from the time Customer accepts the GTCs as so updated, amended or supplemented.
1.6. Customer shall at all times ensure and be responsible for the full compliance with and observance of these GTCs by Customer’s own customers, as well as Customer’s affiliates, officers, directors, employees, agents, contractors, consultants, vendors, invitees, and representatives, as well as those of its customers.
2. SCOPE AND CONCLUSION OF THE AGREEMENT
2.1. CesiumAstro’s display of its products and services (including any related pricing or other information) on its website, or in catalogs, brochures, or datasheets or in any quotation issued by CesiumAstro to Customer, shall under no circumstances constitute a binding offer capable of being accepted by Customer to conclude an agreement for the purchase and sale of CesiumAstro’s products and services, but rather, shall constitute only a non-binding invitation from CesiumAstro to Customer to make an offer to CesiumAstro for the purchase and sale of such products and services.
2.2. In response to a quotation issued by CesiumAstro at Customer’s request, or otherwise as permitted on or through CesiumAstro’s website or by CesiumAstro’s personnel, Customer may submit a binding offer to purchase specified materials, goods, products and/or services of CesiumAstro (“Products”) by (1) submitting a signed Purchase Order or other written offer to CesiumAstro for the purchase of such Products, and (2) by signed written agreement to the GTCs (in each such case, a “Customer Offer”). For avoidance of doubt, an offer sent via email or facsimile shall constitute a “written offer” for purposes of these GTCs.
2.3. Once Customer has submitted a Customer Offer, such Customer Offer shall be binding upon Customer and shall be irrevocable by Customer for a period of four weeks after CesiumAstro’s receipt thereof. Following the expiration of such four-week period, such Customer Offer shall remain binding upon Customer and shall remain subject to acceptance by CesiumAstro for an unlimited period of time, unless and until CesiumAstro receives from Customer an express written revocation thereof.
2.4. A binding agreement for the purchase and sale of the Products specified in the Customer Offer shall only be deemed to have been entered into by the Parties at such time, if any, as CesiumAstro delivers to Customer an express written acceptance of the Customer Offer, which written acceptance may be delivered by email, facsimile, courier service, ordinary mail or otherwise (each such acceptance by CesiumAstro creating an “Agreement” which incorporates these GTCs).
2.5. Regardless of whether CesiumAstro and Customer enter into an Agreement for the relevant Products, Customer shall be solely responsible for the fees and costs of any drawings, sketches, samples, calculations or simulations, and any other work or services performed by CesiumAstro in connection with any offer by, or negotiations with Customer, to the extent any of the same are requested by Customer and/or deemed appropriate by CesiumAstro. CesiumAstro shall invoice Customer at CesiumAstro’s standard rates for any such fees and costs, and any such fees and costs shall be due and payable by Customer to CesiumAstro as otherwise specified under Section 5 promptly upon(but in no event later than 14 days after) Customer being invoiced by CesiumAstro.
2.6. CesiumAstro reserves the right in its sole discretion to decline any Customer Offers for any reason, or for no reason in its sole discretion.
2.7. These GTCs shall remain in effect and survive any expiration, termination and/or fulfillment of any Agreement. In the event of any such termination, Customer shall cease all further use of any Products to the extent they were provided under a revocable license, or any portion thereof, in all forms and on all media and computer memory, and shall immediately: (i) surrender and deliver such Products including all copies thereof to CesiumAstro; or (ii) at the option of CesiumAstro, destroy all copies, including backup and archival copies, and provide satisfactory evidence of such destruction to CesiumAstro within one (1) month following termination.
3. OBLIGATIONS OF CUSTOMER
3.1. Customer guarantees and warrants that all information, regardless of its form, provided to CesiumAstro by or on behalf of Customer and/or used by Customer in combination with the Products of CesiumAstro:
a. is not false, inaccurate or misleading;
b. does not omit any material facts;
c. does not either alone or when used in combination with the Products breach any rights of third parties, or agreements with such third parties, including any non-disclosure of confidentiality obligations to which Customer may be subject;
d. does not breach any laws, statutes, regulations or other applicable laws; and
e. does not contain any viruses or programs which cause damages, impede or which intercept information, data and personal information or use such data illegitimately.
3.2. Subject to the license grants and restrictions contained herein, Customer must treat licensed Software, trade secrets, and any other Intellectual Property of CesiumAstro as “Confidential Information” and Customer agrees to retain such in confidence perpetually with respect to any trade secrets and/or licensed Software in source code form (or other Intellectual Property that is human readable), or for a period of five (5) years from the date of any termination of this Agreement with respect to all other parts of the Products. During this period, Customer may not disclose any part of the Confidential Information to anyone other than employees who have a need to know of the Confidential Information to perform their authorized job functions and who have executed written agreements obligating them to at least the same degree of care concerning the handling of CesiumAstro’s Confidential Information as is required in this Agreement. Customer agrees to use at least the same degree of care, but no less than a reasonable degree of care, with the Confidential Information as it does with its own confidential information. Customer may disclose Confidential Information to the extent required by a court or under operation of law or order provided that it notifies CesiumAstro of such requirement prior to disclosure, and after allowing CesiumAstro the opportunity to object to such court or other legal body requiring such disclosure.
4. PRICES AND AVAILABILITY
4.1. The pricing and other information set forth in CesiumAstro’s price lists, advertisements, marketing and sales materials, catalogs, brochures and datasheets, and on CesiumAstro’s website, is at all times subject to change. CesiumAstro reserves the right to amend such pricing and other information at any time and without notice to Customer up to and until finally agreed upon in CesiumAstro’s written acceptance of a Customer Offer (except to the extent that such acceptance itself indicates pricing variability based on the conditions specified therein). Customer acknowledges and agrees that in relying on any information on CesiumAstro’s website, it shall refer to the most current version thereof, and actively contact CesiumAstro in case of any doubt or conflict with previously received information.
4.2. CesiumAstro’s performance of any Agreement shall remain conditional on availability, up to the point of delivery of Products. CesiumAstro reserves the right at any time, including after entering into an Agreement with Customer, to refrain from fulfilling Customer's order due to unavailability concerns, in which case, CesiumAstro shall inform Customer as soon as is practical after any such determination is made that the ordered Products are unavailable, and any amounts in respect of the purchase price for the Products, if already paid by Customer, shall be refunded.
5. CONDITIONS OF PAYMENT
5.1. CesiumAstro accepts payments via wire transfer and checks.
5.2. Customer shall make all payments in U.S. Dollars (USD), and shall be responsible for any bank fees or surcharges or other costs or expenses of making payment to CesiumAstro. Any applicable tax exemptions must be made available to CesiumAstro prior to invoicing, or such taxes will be charged for the jurisdiction of delivery destination. Any exemption certificates must correlate with the jurisdiction of delivery destination. When CesiumAstro is required to collect taxes from Customer, such taxes will be added to invoice prices. In the event CesiumAstro does not collect taxes from Customer and CesiumAstro is later required to pay such to any taxing authority, Customer will immediately remit to CesiumAstro reimbursement for the uncollected/unpaid but owed taxes.
5.3. Unless otherwise expressly agreed by the Parties in writing (such as in an agreed upon Quote), Customer must pay the full purchase price for any Products within four weeks after CesiumAstro’s acceptance of Customer’s offer, and delivery of the Products will only be processed after CesiumAstro receives the full purchase price.
5.4. In case CesiumAstro and Customer agree that a down payment is required in connection with the purchase of any Products by Customer, Customer shall pay the down payment to CesiumAstro prior to CesiumAstro beginning any activity in connection with the Agreement. Unless otherwise expressly agreed by the Parties in writing (such as in an agreed upon Quote), (a) any down payment is due and payable by Customer within 14 days after CesiumAstro accepts Customer’s offer and (b) Customer shall pay the remaining purchase price for the relevant Products before delivery of the respective Products.
5.5. Customer shall under no circumstances set-off or net against amounts otherwise payable by Customer to CesiumAstro under these GTCs any amounts due to Customer from CesiumAstro or any claims that Customer may have against CesiumAstro. Customer shall not be entitled to retain any payments owed to CesiumAstro hereunder, and hereby waives any rights of retention, set-off, warehousing, judicial deposit or any kind of bond.
6. DEFAULT IN PAYMENT
6.1. In case of Customer's payment default, CesiumAstro is entitled to claim interest on any overdue amounts at a rate equal to 12% per annum (or, if lower, the maximum rate permitted under applicable laws) and to withhold any further performance under its Agreement with Customer. Such remedies shall not be exclusive, and notwithstanding CesiumAstro’s exercise thereof, CesiumAstro shall retain the right to pursue any and all other claims and remedies available to it, whether at law or in equity.
6.2. Customer shall be liable for any and all costs and expenses incurred by CesiumAstro to enforce Customer’s obligations to make payment hereunder, whether judicially or otherwise, including but not limited to the actual fees and expenses of legal and tax counsel and debt-collection agencies. In addition to and not in limitation of the foregoing, Customer may be charged a base amount of USD $1,000.00 per collection action taken (whether in writing, verbally, or otherwise) to account for the time and resources necessary to pursue enforcement of its obligations, irrespective of damage and fault. The foregoing remedies shall not be exclusive, and notwithstanding CesiumAstro’s exercise thereof, CesiumAstro shall retain the right to pursue any and all other claims and remedies available to it, whether at law or inequity.
6.3. Customer shall be responsible for and shall pay to CesiumAstro, any and all additional costs, expenses, fees or other amounts that may be incurred by CesiumAstro as a result of any delay by Customer in the performance of its obligations to CesiumAstro hereunder or otherwise.
6.4. Default in payment at anytime may result, at CesiumAstro’s discretion, in suspension of ongoing services and delivery of Products, as well as in the termination and/or suspension of any license(s) granted hereunder which are not yet fully paid.
7. DELIVERY AND TRANSFER OF RISK; FORCE MAJEURE
7.1. The Products shall be deemed delivered when the Customer has received the shipment of the Products (“Delivery Time”), unless such shipment is agreed in writing to be FOB from the point of shipment.
7.2. CesiumAstro shall give Customer at least 1 week advance notice of the Delivery Time.
7.3. Customer is responsible for all duties and import taxes, and the delivery terms for all deliveries of Products hereunder are DDP (Incoterms 2010).
7.4. Any specified delivery dates communicated by CesiumAstro to Customer are non-binding estimates only, any warranties for which are hereby disclaimed.
7.5. To the greatest extent permitted by law, Customer hereby irrevocably waives and agrees not to assert any claims against CesiumAstro due to CesiumAstro’s delayed delivery of any Products or withdrawal from any Agreement to provide Products, in each case as contemplated and permitted by these GTCs. CesiumAstro shall under no circumstances be liable to Customer for any losses or damages of any kind suffered or incurred by Customer due to any of the foregoing.
7.6. CesiumAstro shall bear the costs for preparing the Products for shipment as of the Delivery Time under Section 7.1.7.7. A Party whose performance of its obligations hereunder (except payment obligations unless otherwise expressly provided herein) is prevented, restricted or interfered with by reason of a Force Majeure condition shall be excused from such performance to the extent and during the continuance of such Force Majeure condition; provided, that such Party immediately continues performance at such time and to the extent the Force Majeure condition is removed. Delivery and other timing obligations hereunder shall be extended on a day-for-day basis, during the continuation of any Force Majeure condition. For the purposes of this Section
7.7, “Force Majeure” shall mean the actual occurrence of any extraordinary event beyond the reasonable control of a Party or such Party's suppliers or other commercial counterparties, including but not limited to acts of warfare(whether an actual declaration of war is made or not), acts of terrorism (in particular through non-state actors), sabotage, insurrection, rebellion, strike, riot or other act of civil disobedience, acts of a public enemy, actions or inactions of any governmental authority, judicial action, fire, accident, explosion, epidemic, pandemic, quarantine, natural disasters such as storm, flood, volcanic activity, or earthquake, or any other extraordinary event commonly referred to as “force majeure”, “vis major”, “acts of God” or the like.
8. TRANSFER OF TITLE
8.1. CesiumAstro retains all right, title and interest in and to all Products until payment in full of the purchase price for such Products (and related costs, fees, and expenses referenced hereunder) have been received by CesiumAstro, whether or not such Products have been delivered to Customer hereunder, and at all times (including after payment) subject to the reservation of CesiumAstro’s Intellectual Property Rights in Software and otherwise, as well as other limitations and license restrictions in Section 13 or elsewhere herein.
8.2. If title to any Product remains with CesiumAstro after delivery of such Product to Customer, Customer may resell such Products only if the Customer procures and delivers to CesiumAstro a written acknowledgment from such transferee in form satisfactory to CesiumAstro acknowledging that such transfer is in all respects subject to CesiumAstro’s retained title, together with any and all other information that CesiumAstro may reasonably request in connection with such transfer or such transferee.
8.3. All claims of Customer resulting from a resale of Products as to which CesiumAstro retains title are hereby assigned to CesiumAstro as security for all claims that CesiumAstro has or may have against Customer.
9. WARRANTY
9.1. Without prejudice to its disclaimer of other warranties herein, CesiumAstro solely warrants and represents to the Customer that:
a. the work performed under this Agreement will be performed in a skillful and workmanlike manner and shall conform with and meet the Agreement’s requirements; and
b. the Product, other than firmware and/or software, at the time such is delivered under this Agreement shall befree from defects in material and workmanship. CesiumAstro proprietary firmware and/or software delivered within or separately from the Products (collectively the “Software”) shall function in a manner meeting the specifications in applicable datasheet(s) furnished by CesiumAstro (but without warranty as to any open-source and/or third party software and/or firmware provided therewith); and
c. to the extent title expressly passes to Customer hereunder, good title shall be transferred, free and clear of any liens, mortgages, security interests and encumbrances of any kind; and
d. the Product shall consist of new, not used or reconditioned, materials unless otherwise agreed here in.
e. other than as specifically and expressly warranted in Section 9.1(b), and to the extent permitted by law, Software is not warranted by CesiumAstro, is delivered “AS IS,” and Customer assumes the entire risk arising out of the use or performance thereof. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL other warranties, express or implied, are HEREBY DISCLAIMED AND RESERVED. ALL OPEN-SOURCE SOFTWARE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH COMPONENTS AND MATERIALS. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF ANY OPEN SOURCE OR THIRD-PARTY SOFTWARE PROVIDED BY CESIUMASTRO, WHETHER OR NOT MODIFIED BY CUSTOMER, REMAINS AT ALL TIMES WITH THE CUSTOMER.
9.2. The above warranties in this Section 9 shall extend:
a. in the case of Product not intended for flight, for a period of one (1) year from Customer’s acceptance; and/or
b. in the case of Product intended for flight, for a period of one (1) year from Customer’s acceptance or until launch of such Product, whichever is the earliest; and/orc. in the case of defective Product, or a part thereof, rectified or replaced by CesiumAstro in accordance with this Section 9, for a period of one (1) year after the date of correction or replacement or until launch of such Product, whichever is the earliest.
9.3. Any warranty rights to which Customer might otherwise be entitled shall be automatically voided and of no further effect with respect to any Product if such Product:
a. has not been used by the Customer in accordance with the requirements of CesiumAstro’s instruction documentation; and/or
b. has been altered or modified in any way, or if an attempt to alter or modify such Product has been made, in each case, by anyone other than CesiumAstro.
9.4. Notwithstanding the existence of any warranty rights that may be available to Customer, and to the extent permitted by applicable law, in no event shall CesiumAstro be liable to Customer for any amount in connection with claims relating to any Product in excess of the purchase price actually paid by Customer to CesiumAstro for the such Product, including, without limitation, in connection with any claims for CesiumAstro’s gross negligence or willful misconduct, for the Customer’s consequential or other special damages, or otherwise.
9.5. Customer may make a claim with respect to any warranty rights that may be available to Customer only if Customer, upon discovery of any defects for which any such warranty claim can and is to be made, immediately notifies CesiumAstro in writing, including a detailed report of any such defects. Following receipt of any such notification from Customer, CesiumAstro shall notify Customer whether or not to return the relevant Product to CesiumAstro and as to how CesiumAstro has otherwise determined to proceed with respect to Customer’s claim.
9.6. If and to the extent a warranty applies to any Product defect, in CesiumAstro’s sole discretion it may choose to replace such defective Product or defective parts thereof, or to repair such defective Product. CesiumAstro may also ask the Customer to return any such defective Product to CesiumAstro for repair, or grant a price reduction with respect thereto. In case that CesiumAstro performs a repair of Products at the Customer’s facilities, Customer shall support CesiumAstro in repairing the Products and shall make all required arrangements deemed necessary by CesiumAstro. Any service performed by CesiumAstro with respect to any Product shall not imply any rights by Customer or any fault or liability on the part of CesiumAstro. If CesiumAstro accepts the return of any allegedly defective Product or consents to examine any allegedly defective Product, no such acceptance or examination by CesiumAstro shall under any circumstances be construed as an admission by CesiumAstro with respect to any claim of Customer or of any fault or liability on the part of CesiumAstro. The burden of proof concerning the presence of the defect lies with the Customer. The images and content on CesiumAstro’s website and/or in Quotes or other materials are for illustration purposes only. Deviations between the delivered Products and any such images shall not constitute a defect with respect to a Product. The assignment of warranty claims, if any, shall be excluded.
10. EXCLUSION AND LIMITATION OF CESIUMASTRO’S LIABILITY; INDEMNIFICATION OF CESIUMASTRO
10.1. CesiumAstro shall not be liable to Customer for any claims for losses or damages unless and only to the extent that any such losses or damages were caused by CesiumAstro willfully and intentionally. CesiumAstro shall only be liable for personal injury in the case that CesiumAstro’s gross negligence actually and directly results in personal injury.
10.2. Notwithstanding anything to the contrary herein, CesiumAstro’s total liability in case of any claims by Customer or any other person for losses or damages in connection with any Product is expressly limited to and agreed by Customer to be any amounts actually received by CesiumAstro from such Customer with respect to such Product. Under no circumstances shall CesiumAstro be liable for CONSEQUENTIAL, INDIRECT, INCIDENTAL, STATUTORY, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES OF ANY NATURE OR TYPE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS FOR LOST PROFITS, REVENUES OR INFORMATION, LOSS OF DATA, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.
10.3. Only monetary compensation shall be rendered by CesiumAstro in case CesiumAstro shall be determined to be liable to Customer for any losses or damages. Customer expressly waives any legal and equitable rights to specific performance or other equitable relief.
10.4. To the extent CesiumAstro might otherwise be liable for any claims for losses or damages with respect to any Product, such claims must be legally asserted by Customer against CesiumAstro within six (6) months from the date on which Customer obtains (or should reasonably have been expected to obtain) actual knowledge of the facts and circumstances giving rise to such losses or damages, without regard to whether, at such time, Customer was aware of the amount or severity of the losses or damages. The burden of proving that Customer neither had actual knowledge nor should reasonably have been expected to have knowledge of the facts and circumstances giving rise to the losses or damages lies with the Customer and not with CesiumAstro.
10.5. CesiumAstro assumes no liability for the retention of any documents, manuscripts, drafts, sketches, samples, models, code, or films or similar materials provided by Customer to CesiumAstro, unless any of the same are lost or damaged as a result of CesiumAstro’s willful misconduct. Customer is solely responsible for adequate back-ups and insurance for such items.
10.6. CesiumAstro assumes no liability for Customer’s assembling of Products or Customer’s placing in service, customizations, modifications, or integration of its own or third party products into CesiumAstro’s Products, or any other use of Products.
10.7. Customer agrees to indemnify CesiumAstro and each of its officers, directors, employees, agents, subsidiaries, and their respective successors and assigns, from and against any and all third party claims, actions, losses, liabilities, damages, costs and expenses(including, but not limited to, reasonable attorney’s fees and court costs) arising out of or resulting from (i) the Customer’s use of the Products; and/or (ii) the actual or alleged infringement by the Customer of any proprietary, trade secret, intellectual property, or privacy right belonging to any third party in connection with its use of the Products.
10.8. As partial, material consideration forProducts sold and/or licensed under the Agreement, Customer covenants not tosue or otherwise assert its patents against CesiumAstro, a CesiumAstroAffiliate or subsidiary, or a CesiumAstro licensee of its Products forinfringement of Intellectual Property Rights by the manufacture, use, sale,offer for sale, importation or other disposition or promotion of the Products orany redistributed portions of the Products.
11. DATA PROCESSING
CesiumAstro handles the data of Customers with reasonable care. In furtherance of the foregoing, CesiumAstro agrees that it will not forward any Personal Data (as defined below) provided by Customer to third parties, unless directed by Customer or required by law to do so. Customer agrees not to provide any personally identifiable information (“Personal Data”) to CesiumAstro without first entering into a mutually agreeable written Data Processing Addendum (“DPA”).
12. WEBSITES AND SERVICES OF THIRD-PARTY PROVIDERS
Services of CesiumAstro may include links to websites, products, and services of other companies. CesiumAstro is not liable for the content of such websites, products, and services. The data collected by such third-party providers are governed by their respective privacy policies. CesiumAstro recommends that Customer inquire with such third-party about their privacy policies.
13. IP RIGHTS
13.1. Nothing herein shall be construed as an assignment by CesiumAstro of any Intellectual Property Rights or other proprietary rights to Customer in the Products or in the course of the Agreement, including, but not limited to, copyright(s) and other intellectual property rights in Software or otherwise that may be included or manifested in the Products, title to which is for all purposes reserved and retained by CesiumAstro and permitted for use hereunder by the license rights granted herein. “Intellectual Property Rights any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights Laws, and all similar or equivalent rights or forms of protection, in any part of the world.
13.2. Each Party acknowledges andagrees that it obtains no rights in the other Party’s trade name, trademarks,services marks, copyright materials, patents, patent applications, or other intellectualproperty, and that all goodwill arising as a result of the Agreement inures tothe benefit of the respective owner of the intellectual property. Each Partyshall retain all rights to any intellectual property it holds as of the date ofthe Agreement and CesiumAstro shall be the sole and exclusive owner of anyintellectual property created in the performance of the Agreement. Customeracknowledges and agrees that (a) any Softwareand Documentation are licensed, not sold, to Customer and Customer does nothave any ownership interest in same, or in any related Intellectual PropertyRights, whether under these GTCs or otherwise (“Documentation” as usedherein meaning all CesiumAstro provided manuals, handbooks, and installation orcnfiguration guides relating to the Products);and (b) CesiumAstro is the sole and exclusive owner of all right, title, andinterest in and to the Software and Documentation, including all IntellectualProperty Rights relating thereto, subject only to the rights of third parties forlicensed components, in open source components used in the Products, and thelimited license granted to Customer in Section 13.3. Except for the limited rights and license(s)expressly granted under these GTCs, nothing herein grants, by implication,waiver, estoppel or otherwise, to Customer or any third party any IntellectualProperty Rights or other right, title, or interest in or to any of the Softwareor Documentation.
13.3. With respect to the Intellectual Property Rights embodied in Software, Documentation, and/or as otherwise manifested by or embodied within any of the Products sold, and subject to Customer’s compliance with these GTCs, including without limitation the restrictions herein, CesiumAstro grants to Customer (and, if specified in the applicable ordering document, for the license term so specified), limited to the purpose of the Agreement, solely (i) a non-transferable, non-exclusive license solely for the purpose of Customer’s own utilization of the Products, (ii) anon-transferable, non-exclusive license to install, execute and use the Software included in or provided with such Products exclusively for the benefit of Customer, solely for the purpose of Customer’s own utilization of the Products, and (iii)the right to use the Documentation related to any such Product The foregoing (i)-(iii) are defined as the “Permitted Use” of the license(s) granted herein. Separate license grants to any software included in the licensed Software that is neither CesiumAstro proprietary Software nor open-source software, and therefore to which different license terms may apply (“Third Party Software”), and/or other terms applicable to the Software if different from those granted in this Section 13.3, may be contained in Appendix A.
13.4. Customer may only make copies of the Software and Documentation for facilitation of the license(s)granted herein, and for backup and archival purposes only after providing CesiumAstro with a written description of such backup and archival process, which may be approved by CesiumAstro at its reasonable discretion.
13.5. The Products (including any Software therein or provided along with such Products) may not be used in a manner that would facilitate activities competitive to CesiumAstro. Customer shall not decipher, decompile, disassemble, reverse engineer, modify, translate, or otherwise attempt to derive source code, algorithms, tags, specifications, architectures, structures or other elements of the work or any of the Product (including Software), in any manner. Customer shall be responsible for installation, configuration, all data manipulation, mapping, formatting and conversion, and all other steps necessary to cause any Software to integrate into and operate in any manner modified by Customer.
13.6. Customer acknowledges that the Software contains open-source software not licensed under the terms of the Agreement or GTCs, but instead licensed under terms of applicable open-source license(s), (such as under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License(MPL), Apache License, BSD licenses, as well as any other license that is approved by the Open-Source Initiative). Customer’s use of open-source software is subject to the terms of each such applicable license, and Customer hereby agrees to the terms of such to use open-source software. Customer may contact CesiumAstro to obtain details as to the open-source components used in the Software provided.
13.7. Except as expressly permitted herein, andsubject to all open-source software rights and limitations in Section 13.6, Customershall not, and shall not permit any other Person to:(a) use the Software with or tosupport and/or develop any hardware target other than the Products, or to modifySoftware code; (b) rent, lease, lend, sell, sublicense,assign, distribute, publish, transfer, or otherwise make available the Software; (c) permit use of the Software other than byCustomer; (d) copy the Software, in whole or in part,except as necessary for the Permitted Use as provided herein or pursuant toSection 13.4 (and even then, only when CesiumAstro or other Third PartyLicensors’ copyright notices and other proprietary legends are reproduced on anycopies); (e) reverse engineer, disassemble,decompile, decode, or adapt the Software, or otherwise attempt to derive orgain access to the source code of the software, in whole or in part, except asnecessary for the Permitted Use; (f) bypass or breach any securitydevice or protection used for or contained in the Software or Documentation; (g) remove, delete, efface, alter, bscure, translate, combine, supplement, or otherwise change any trademarks,terms of the Documentation, warranties, disclaimers, or Intellectual PropertyRights, proprietary rights or other symbols, notices, marks, or serial numberson orrelating to any copy of the Software or Documentation; (h) use the Software in any manneror for any purpose that infringes, misappropriates, or otherwise violates anyIntellectual Property Right or other right of any Person, or that violates anyapplicable Law; (i) use the Software for anypurpose that is to CesiumAstro’s detriment or commercial disadvantage,including, but not limited to: (i) benchmarking or competitive analysis; and/or(ii) developing, using, or providing a competing Product;(j) use(i) the Software or Documentation other than for the Permitted Use or in any anner or for any purpose or application not expressly permitted by these GTCs or(ii) any open-source components in any manner or for any purpose or applicationnot expressly permitted by the controlling open source license(s) that mayapply.(k) modify, correct, adapt,translate, enhance, or otherwise prepare derivative works or improvements ofanySoftware, except as necessary for the Permitted Use.(l) take or fail to take anyaction that could subject the licensed Software to an Excluded License. AnExcluded License means any license that requires, as a condition of use,modification or distribution of software subject to the Excluded License, thatsuch software or other software combined and/or distributed with the softwarebe (i) disclosed or distributed in source code form; (ii) licensed for thepurpose of making derivative works; or (iii) redistributable at no charge.
13.8. All pictures, images, trademarks, logos, designs, drafts, pertinent drawings and descriptions of Product and CesiumAstro are protected by copyrights. Customer may not make use of them other than as agreed upon under these GTCs. Customer may in particular not copy them or make them accessible to third parties.
13.9. Notwithstanding Section 13.2, after receiving written permission from Customer, CesiumAstro may use Customer’s name and company name for marketing purposes, including, without limitation, in connection with CesiumAstro’s press releases, public announcements, advertisements, or other form of publicity concerning the Agreement with Customer.
13.10. Customer agreesto: (a) take all commercially reasonable measures to safeguard IntellectualProperty of CesiumAstro, including Software and Documentation (including allcopies thereof) from infringement, misappropriation, theft, misuse, orunauthorized access; (b) at CesiumAstro’sexpense, take all such steps as CesiumAstro may reasonably require to assist inmaintaining the validity, enforceability and CesiumAstro’s ownership of theIntellectual Property Rights; (c) promptlynotify CesiumAstro in writing if Customer becomes aware of: (i) any actual orsuspected infringement, misappropriation or other violation of CesiumAstro’sIntellectual Property Rights; or (ii) any claim that the Products, Software orDocumentation, including any production, use, marketing, sale or other dispositionof the Software or Documentation, in whole or in part, infringes,misappropriates or otherwise violates the Intellectual Property Rights or otherrights of any Person; and (d) at CesiumAstro’ssole expense, fully cooperate with and assist in all reasonable ways in theconduct of any action to prevent or abate any actual or threatenedinfringement, misappropriation or violation of CesiumAstro’s rights in, and toattempt to resolve any actions relating to, the Software or Documentation,including having Customer’s employees testify when requested and makingavailable for discovery or trial relevant records, papers, information,samples, specimens and the like.
13.11. Customer grants to CesiumAstro a non-exclusive, non-transferable, irrevocable, perpetual, worldwide, royalty-free, sub-licensable license under its own Intellectual Property Rights to use without restriction and for any purpose any suggestion, comment or other feedback related to the licensed Software, Documentation and/or Products (including, but not limited to, error corrections and bug fixes).
13.12. CesiumAstro may terminate any license granted herein upon the occurrence of any of the following events: (a) Customer fails to pay any fee, charge, tax, or other reimbursement when due and the failure to pay is not cured within ten (10) days’ written notice thereof; (b) Customer transfers (or attempts to transfer) title to or possession of the Software without CesiumAstro's prior written consent; (c) Customer breaches any material obligation of the GTCs or Agreement and such breach is not cured within thirty (30) days’ written notice thereof; (d) Customer becomes insolvent, or is adjudicated a bankrupt, or voluntarily seeks protection under any bankruptcy or insolvency law; or (e) Customer makes an assignment of its assets for the benefit of creditors or any arrangement with its creditors.
14. PRODUCT LABELING
CesiumAstro has the right to determine the labeling of the Products in its sole discretion. Such label mayinclude, without limitation, a trade mark or logo of CesiumAstro.
15. GOVERNING LAW, FORUM
15.1. This Agreement shall be governed by and construed, enforced and interpreted under the laws of the State of Texas, without regard to its laws relating to conflict or choice of laws and all disputes will be resolved in the state or federal courts, as applicable, of Travis County, Texas. The parties hereby submit to the personal jurisdiction of the state and federal courts, as applicable, located in Travis County, Texas.
15.2. The parties agree to the exclusive jurisdiction and venue of the state and federal courts located in Texas as to any matters properly subject to court proceeding, and agree not to contest the jurisdiction, venue or convenience of such courts as to any matter arising out of or relating to this agreement.
16. MISCELLANEOUS
16.1. Customer is solely responsible that all legal requirements for the use and a possible resale of Products by Customer are met and complied with, including by any EULA or other license terms referenced in Software notice files or at Appendix A. Customer agrees to be responsible for reviewing and complying with all license restrictions related to any software provided (open-source or otherwise) and not to use the Software in a manner that would alter such restrictions.
16.2. Except as contemplated by Section 1.5 of these GTCs, all amendments, modifications, changes, supplements and additions to these GTCs shall be in writing and executed by the Parties hereto. Any waiver of any term or condition of these GTCs shall be in writing and shall be executed by or on behalf of the Party against whom enforcement of such waiver is sought. This document, and the documents referenced herein, constitute the entire understanding and agreement of the parties, and any and all prior agreements, understandings, and representations are hereby terminated and canceled in their entirety and are of no further force and effect.
16.3. If any claim or dispute related to this Agreement arises between the Parties that leads to arbitration or other proceeding to resolve such dispute, then the prevailing Party in such proceeding shall be entitled to receive its reasonable attorneys' fees and costs incurred in connection with such proceeding in addition to any other relief it may be awarded. Each of the Parties agrees that during the term of this Agreement, and for a period of two (2) years thereafter, neither Party will solicit to employ any of the officers or employees of the other Party with whom they have had material contact or who were specifically identified to them in connection with this Agreement, without the prior written consent of such other Party. The foregoing restriction will not apply to any officer or employee of a Party sixty (60) days after the termination of his or her employment with that Party through no effort, directly or indirectly, of the other Party. This clause shall not restrict employees of either Party from responding to general employment advertisements and voluntarily applying for available employment at the other Party’s organization.
16.4. Any and all notices ,demands, or other communications required or desired to be given hereunder by any Party shall be in writing and shall be validly given or made to another Party if personally served, or if deposited in the United States mail, certified or registered, postage prepaid, return receipt requested, or sent by a national overnight delivery service (such as FedEx, UPS, DHL, etc.), or by email so long as acknowledged received the other Party within 24 hours of sending. If such notice or demand is served personally, notice shall be deemed constructively made at the time of such personal service. If such notice, demand or other communication is given by mail, such notice shall be conclusively deemed given five days after deposit thereof in the United States mail addressed to the Party to whom such notice, demand or other communication is to be given to the addresses provided in this Agreement. If notice is by a national overnight delivery service, such notice shall be conclusively deemed given upon confirmation of delivery by such delivery service. Either Party hereto may change its address for purposes of this Section by written notice given in the manner provided.
16.5. The purpose of Section titles and headings in these GTCs is solely to provide structure and clarity and any such Section titles or headings shall have no legal effect in the construction or interpretation of these GTCs.
16.6. The invalidity of one or more, or parts, of terms or provisions of these GTCs shall not affect the validity of any other term or provision of the GTCs. CesiumAstro and Customer agree to reach a binding agreement to replace the invalid provision by a valid term as closely as possible to the purpose of the invalid provision.
16.7 The rights and obligations of the parties to this Agreement may not be assigned except by written consent by the Parties; provided, however, the rights and obligations may be assigned to an Affiliate or in connection with a merger, acquisition, reorganization or restructuring of all or substantially all of the assigning Party’s assets or voting securities.
16.8. Customer agrees that any distribution of Software to the United States Government is considered "restricted computer software" and is subject to FAR 52.227-19 (c)(1) and (c)(2). The Software, including any Documentation and the components that constitute the Software, are "commercial items" as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
16.9. Customer is solely responsible for obtaining licenses for any relevant Essential Patents for its use in connection with technology that it incorporates into its use of the Products. An “Essential Patent” for this purpose means a patent to the limited extent that infringement of such patent cannot be avoided in remaining compliant with the technology standards implicated by the usage of any of the Products, including optional implementation of the standards, on technical but not commercial grounds, considering normal technical practice and the state of the art generally available at the time of standardization.
