This Fort Robotics Customer Agreement (“Agreement”), is between Fort Robotics, Inc. (“Manufacturer”), and the organization agreeing to these terms (“Customer”).
1. DEFINITIONS.
1.1 “Access Credentials" means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual's identity and authorization to access and use of the Fort Platform.
1.2 “Customer Product(s)” means the products specified in the applicable Order Acknowledgement (as defined below), which are used by Customer for its internal business purposes and are not sold, distributed, leased or licensed to any third party (including, without limitation, as part of Customer’s services) in combination with a Product.
1.3 “Effective Date” means the date of last signature in the applicable Order Acknowledgement or, if earlier, the start of the license term specified in the applicable Order Acknowledgement.
1.4 “End User” means an employee or contractor of Customer who is authorized to access and use to the Fort Platform and/or the Fort Manager solely for supporting Customer’s internal use of the Products for purposes permitted by this Agreement.
1.5 “Fort Manager” means the Manufacturer hosted software listed on the applicable Order Acknowledgement, including any modifications or updates thereto, to which Customer and its End Users are provided access by Manufacturer pursuant to this Agreement.
1.6 “Fort Platform” means the Manufacturer software (in object code form) listed on the applicable Order Acknowledgement, including any modifications or updates thereto, made available to Customer by Manufacturer pursuant to this Agreement.
1.7 “Harmful Code" means any software, technology, or other means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner access or use of Fort Manager.
1.8 “Intellectual Property Rights” means patent rights, copyright rights (including, but not limited to, rights in audiovisual works and moral rights), trade secret rights, and any other intellectual property rights recognized by the law of each applicable jurisdiction.
1.6 “Marks” means Manufacturer’s trademarks, tradenames, service marks, and/or service names whether or not registered.
1.7 “Product(s)” means the Manufacturer products listed on the applicable Order Acknowledgement, including but not limited to any modifications or additions provided to Customer by Manufacturer.
2. ORDERS; SUPPLY AND DISTRIBUTION; LICENSES AND RESTRICTIONS.
2.1 Orders. The Agreement governs (a) the supply of Product by or on behalf of Manufacturer to Customer, and (b) access to, and use of, the Fort Platform and/or the Fort Manager, subscribed to by Customer, pursuant to a purchase order or order acknowledgement form executed by both Parties (upon execution, each a “Order Acknowledgement”). All Order Acknowledgements shall be governed by the terms and conditions hereof.
2.2 Restrictions and Reservation of Rights.
2.2.1 Restrictions. Customer will not, directly or indirectly, and will ensure its End Users will not, directly or indirectly: (i) disassemble, decompile, or reverse engineer any Products, Fort Manager, or the Fort Platform, in whole or in part (including, with respect to the Fort Manager or Fort Platform, attempt to derive or gain access to the source code thereof), or attempt or assist anyone else to do so (unless this restriction is prohibited by law); (ii) copy or otherwise reproduce, distribute, sell, resell, lease or make available, grant access to (alone or in combination with other products, including as part of Customer Products) any Products, Fort Manager, or the Fort Platform, in whole or in part; (iii) modify or created derivative works of the Product, Fort Manager, or Fort Platform in any manner, except as it may be expressly directed by Manufacturer in writing; or (iv) use, sell, resell, lease, distribute, make available, grant access to or otherwise dispose of the Fort Manager or the Fort Platform (alone or in combination with other products, including as part of Customer Products), except as expressly permitted under this Agreement; (v) bypass or breach any safety or security device or protection used by the Products, the Fort Manager, or the Fort Platform, or allow or permit the access or use of the same by any person other than an End User; (vi) input, upload, transmit, or otherwise provide to or through the Fort Manager or the Fort Platform, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code; (vii) remove, delete, alter, or obscure any trademarks, warranties, or disclaimers, or any Intellectual Property Rights notices from the Products, Fort Manager, or the Fort Platform; (viii) access or use the Products, Fort Manager, or the Fort Platform, in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable law or regulation; or (ix) access or use the Products, Fort Manager, or the Fort Platform for purposes of competitive analysis, the development, provision, or use of competing software or product or any other purpose that is to Manufacturer’s detriment or commercial disadvantage. In addition, Customer shall only use the Products, the Fort Manager, and the Fort Platform in a safe manner and in accordance with applicable law and regulations and all safety instructions provided by Manufacturer.
2.2.2 Reservation of Rights. Nothing in this Agreement or any Order Acknowledgment grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Products, the Fort Manager, or the Fort Platform, whether expressly, by implication, estoppel, or otherwise. Manufacturer reserves all right, title and interest in and to its Intellectual Property Rights, the Fort Manager, and the Fort Platform not expressly granted by Manufacturer under this Agreement, including the right, in its sole discretion, to make any changes to the Fort Manager or the Fort Platform that Manufacturer deems necessary or useful to: (i) maintain or enhance: (A) the quality of or access to the Fort Manager or the Fort Platform; (B) the competitive strength of or market for Manufacturer goods and services; or (C) the cost efficiency or performance of the Fort Manager or the Fort Platform; or (ii) to comply with applicable laws or regulations. Furthermore, Manufacturer retains sole control over the operation, provision, maintenance, and management of the Fort Manager and the Fort Platform. Customer’s rights in the Products will be limited to those expressly granted in this Agreement.
2.2.3 Customer Responsibilities. Customer has and will retain sole responsibility for: (i) all information, instructions, and materials provided by or on behalf of Customer or any End User in connection with Customer’s use of the Products, the Fort Manager and/or the Fort Platform; (ii) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services ("Customer Systems"); (iii) the security and use of Customer's and its End Users' Access Credentials; and (iv) all access to and use of the Products, the Fort Manager and/or the Fort Platform directly or indirectly by or through the Customer Systems or its or its End Users' Access Credentials, with or without Customer's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. Customer shall further employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to securely administer the distribution and use of all End User Access Credentials and/or protect against any unauthorized access to or use of the Fort Manager and/or the Fort Platform.
2.3 Software Licenses.
2.3.1 Limited License to the Fort Manager. Subject to the terms and conditions of this Agreement, if the Fort Manager is specified in an Order Acknowledgement, Manufacturer grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, license during the license term specified in the applicable Order Acknowledgement to access and use, and to permitted End Users to access and use, the Fort Manager solely in connection Customer’s permitted use of the Products and/or the Fort Platform under applicable Order Acknowledgment(s) for the Products and/or the Fort Platform. Customer shall and ensure that each End User shall only access the Fort Manager through the use of valid Access Credentials for such End User using computers that are set up, maintained, and operated in good repair, including, without limitation, through the use of industry standard antivirus software and the timely application of updates to such computers, their operating systems, and/or software applications. Customer shall, upon the earlier of (i) expiration or termination of this Agreement, for any reason, or (ii) expiration of the license term specified in the applicable Order Acknowledgement, ensure that the Access Credentials of each End User for the Fort Manager are revoked and that the End Users cease to have the right to access or use the Fort Manager.
2.3.2 Limited License to the Fort Platform. Subject to the terms and conditions of this Agreement, if the Fort Platform is specified in an Order Acknowledgement, Manufacturer grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, license during the license term specified in the applicable Order Acknowledgement to access and use the Fort Platform solely for integrating the Product and Fort Platform with the Customer Product for Customer’s own internal use. Customer may make only as many internal use copies of the distributable components (as designated by Manufacturer) of the Fort Platform as reasonably necessary to use the Fort Platform as permitted under this license. Customer shall and ensure that the End Users shall upon the earlier of (i) expiration or termination of this Agreement, for any reason, or (ii) expiration of the license term specified in the applicable Order Acknowledgement, cease to have the right to use the Fort Platform as part of the Customer Products or otherwise.
2.4 End User Agreement. Manufacturer may require End Users to agree to agree to Manufacturer’s standard end user terms for the Fort Manager or the Fort Platform, as may be implemented by Manufacturer from time to time. Customer shall further ensure that each End User shall adhere to the provisions of Section 6.
2.5 Trademarks. Manufacturer will have the exclusive right to own, use, hold, apply for registration for, and register the Marks during the term of, and after the expiration or termination of, this Agreement; Customer will neither take nor authorize any activity inconsistent with such exclusive right.
3. DELIVERY/ORDER PROCEDURE.
3.1 Orders. Customer will order Products by Order Acknowledgements. The terms of this Agreement supersede all terms and conditions contained in any other documentation issued by either party related to the subject matter of this Agreement and expressly exclude Customer’s terms and conditions contained in any invoice, purchase order or other document issued by Customer or contained on Customer’s website. Any terms and conditions of any Order Acknowledgement that are in addition to or inconsistent with the terms and conditions of this Agreement will be deemed stricken from such Order Acknowledgement, notwithstanding any acknowledgment or acceptance of such order, unless the Order Acknowledgement specifically references the provision of this Agreement that Parties intend to modify and explicitly states the Parties’ intention to amend it.
3.2 Acceptance. All orders for Products, the Fort Manager, or the Fort Platform are subject to acceptance in writing of the applicable Order Acknowledgement by Manufacturer and no Order Acknowledgement shall be considered binding until the earlier of such acceptance or shipment, and, in the case of acceptance by shipment, only as to the portion of the order actually shipped. Manufacturer will make commercially reasonable efforts to ship the Products to Customer in accordance with delivery schedules specified in the Order Acknowledgement as accepted by Manufacturer.
3.3 Shipment. Orders for Products will be shipped FCA Manufacturer’s point of shipment. Shipments will be made to Customer’s identified warehouse facilities or freight forwarder, subject to approval in writing by Manufacturer in advance of shipment. Unless otherwise specified in the applicable Order Acknowledgement, Manufacturer will select the mode of shipment and the carrier. Customer will be responsible for and pay all packing, shipping, freight and insurance charges, which charges Manufacturer may require Customer to pay in advance. Title (except title to the Fort Platform and any other software contained in the Products, which shall remain with Manufacturer and its suppliers) and all risk of loss of or damage to Products will pass to Customer upon delivery by Manufacturer to the carrier, freight forwarder or Customer, whichever first occurs.
3.4 Cancellation. Manufacturer reserves the right to cancel any orders placed by Customer and accepted by Manufacturer as set forth above, or to refuse or delay shipment thereof, if Customer: (i) fails to make any payment as provided in this Agreement or under the terms of payment set forth in any invoice or otherwise agreed to by Manufacturer and Customer; (ii) fails to meet reasonable credit or financial requirements established by Manufacturer, including any limitations on allowable credit; or (iii) otherwise fails to comply with the terms and conditions of this Agreement. No such cancellation, refusal or delay will be deemed a termination (unless Manufacturer so advises Customer) or breach of this Agreement by Manufacturer.
3.5 Suspension or Termination of Software Licenses. Manufacturer may, directly or indirectly, suspend, terminate, or otherwise deny Customer's, any End User's, or any other person's access to or use of all or any part of the Fort Manager or the Fort Platform, without incurring any resulting obligation or liability, if: (i) Manufacturer receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Manufacturer to do so; or (ii) Manufacturer believes, in its sole discretion, that: (A) Customer or any End User has failed to comply with any term of this Agreement, or accessed or used the Fort Manager or the Fort Platform beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instructions or requirements of Manufacturer; (B) Customer or any End User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (C) this Agreement expires or is terminated. This section does not limit any of Manufacturer’s other rights or remedies, whether at law, in equity, or under this Agreement.
4. Payments.
4.1 Payments for Products. Customer will pay Manufacturer the prices for the Products and the licenses for access and use of the Fort Manager and/or the Fort Platform in connection with such Products as set forth in the applicable Order Acknowledgement. Such prices are stated in United States dollars. All shipping or other transportation charges for delivery of the Products to Customer, including insurance and special packaging, will also be paid by Customer.
4.2 Payments for Maintenance, Support, Updates, and Enhancements. To the extent that Customer elects to receive maintenance and support services and updates and enhancements for the Products from Manufacturer under Section 5.2, Customer will pay Manufacturer the nonrefundable amounts specified in the applicable Order Acknowledgement for such services.
4.3 Taxes. All amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other taxes and duties. Customer will pay all taxes and duties assessed in connection with this Agreement and its performance by any authority within or outside of the U.S., except for taxes payable on Manufacturer’s net income. Manufacturer will be promptly reimbursed by Customer for any and all taxes or duties that Manufacturer may be required to pay in connection with this Agreement or its performance.
4.4 Payment Terms. Unless otherwise agreed in the applicable Order Acknowledgement, all payments shall be due thirty (30) days from the date of Manufacturer’s invoice. Payments will be by certified check or wire transfer to a bank account designated by Manufacturer the amount of the aggregate prices of the Products ordered (plus any applicable taxes, shipping and other charges).
4.5 Credit Terms. Manufacturer reserves the right, upon written notice to Customer, to declare all sums immediately due and payable in the event of a breach by Customer of any of its obligations to Manufacturer, including the failure of Customer to comply with credit terms. Furthermore, Manufacturer reserves the right at all times either generally or with respect to any specific order by Customer to vary, change or limit the amount or duration of credit to be allowed to Customer. Customer agrees to pay for Products as invoiced.
4.6 Interest. Interest shall accrue on any delinquent amounts owed by Customer for Products at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable usury law.
4.7 No Setoff. Customer will not setoff or offset against Manufacturer’s invoices amounts that Customer claims are due to it. Customer will bring any claims or causes of action it may have in a separate action and waives any right it may have to offset, setoff or withhold payment for Products delivered by Manufacturer
5. MAINTENANCE, SUPPORT, AND TRAINING.
5.1 Subject to receipt by Manufacturer of payments as specified in Section 4.2, during the Term of this Agreement, Manufacturer will be responsible for providing the following support to Customer: (i) installing the Products as needed; (ii) training End Users to use the Products, the Fort Manager, and/or the Fort Platform as intended; (iii) providing direct first level technical support to End Users via email during standard business hours (Monday through Friday), including but not limited to diagnosing problems and using its reasonable efforts to provide solutions on a best effort basis; and (iv) providing Customer with standard warranty coverage and replacement handling for validated claims during the initial twelve (12) month period following the applicable Shipment date, on a Product-by-Product basis. For the avoidance of doubt, the support included under this Section 5.1 does not include firmware updates, advanced replacement, priority escalation, or guaranteed response time SLAs. Customers seeking enhanced support coverage, including extended warranty terms, firmware maintenance, prioritized response SLAs, or advanced replacement options, must purchase an applicable upgrade in accordance with Manufacturer's then-current support tier offerings as set forth in the applicable Appendix A.
6. CONFIDENTIALITY.
6.1 Confidential Information. “Confidential Information” means: (a) with respect to Manufacturer, the Products, the Fort Manager, and the Fort Platform; (b) any business or technical information of Manufacturer or Customer, including but not limited to any information relating to Manufacturer’s or Customer’s product plans, designs, costs, finances, marketing plans, business opportunities, personnel, research, development or know-how; and (c) the terms and conditions of this Agreement, including the applicable Order Acknowledgement.
6.2 Exceptions. Confidential Information shall not include information that: (a) is in or enters the public domain without breach of this Agreement through no fault of the receiving party; (b) the receiving party was demonstrably in possession of prior to first receiving it from the disclosing party; (c) the receiving party can demonstrate was developed by the receiving party independently and without use of or reference to the disclosing party’s Confidential Information; or (d) the receiving party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation.
6.3 Obligations. Each party will maintain the Confidential Information of the other party in strict confidence and will exercise due care, but in no case less than a reasonable degree of care, with respect to the handling and protection of such Confidential Information, consistent with its own policies concerning protection of its own Confidential Information of like importance. Each party will use the Confidential Information of the other party only as expressly permitted herein, and will disclose such Confidential Information only to its employees and consultants as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein executed in writing by such employees and consultants). However, each party may disclose Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the receiving party gives, to the extent legally permitted, reasonable notice to the other party to contest such order or requirement. Any such disclosure by the receiving party of the Confidential Information of the disclosing party, will, in no way, be deemed to change, affect or diminish the confidential and proprietary status of such Confidential Information.
6.4 Injunctive Relief. Each party acknowledges that improper use or disclosure of the Confidential Information of the other party would cause substantial harm to the other party that could not be remedied by the payment of damages alone. Accordingly, each party will be entitled to seek preliminary and permanent injunctive relief and other equitable relief for any breach of this Section 6, without the need to post any bond or security.
7. WARRANTY.
7.1 Power and Authority. Manufacturer warrants to Customer that it has sufficient right and authority to grant to Customer all licenses and rights that Manufacturer grants under this Agreement.
7.2 Product Warranty. Manufacturer warrants to Customer that the Products will be free from material defects for each Product, for as long as the license to Fort Platform granted under Section 2.3.2 with respect to such Product continues. In the event the Products fail to conform to such warranty, as Customer’s sole and exclusive remedy for such failure Manufacturer will, at its option and without charge to Customer, repair or replace the Products provided the nonconforming item is returned to Manufacturer in accordance with Manufacturer’s RMA procedures within the warranty period. The foregoing warranty shall not apply to any nonconformities caused by Customer’s modification, alteration, improper handling or misuse of the Product or the Fort Platform.
7.3 Customer Product. Customer acknowledges and agrees, and represents and warrants to Manufacturer, that Customer, through its own analysis and testing, is solely responsible for making the final selection of the system and components and assuring that all performance, endurance, maintenance, safety and warning requirements of the application are met in the Customer Products. Customer represents and warrants that it will analyze all aspects of the application, follow applicable industry standards, and follow the information concerning the Products, the Fort Manager, the Fort Platform, and in any other materials provided from Manufacturer.
7.4 Disclaimer of Other Warranties. THE WARRANTIES IN THIS SECTION ARE IN LIEU OF, AND MANUFACTURER EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. MANUFACTURER FURTHER DOES NOT WARRANT RESULTS OF THE USE OF THE PRODUCTS, THE FORT MANAGER, OR THE FORT PLATFORM, OR THAT THE PRODUCTS, THE FORT MANAGER, OR THE FORT PLATFORM WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. THE FORT PLATFORM, IN PARTICULAR, IS PROVIDED ON AN “AS-IS, WITH ALL FAULTS” BASIS.
8. INDEMNITIES.
8.1 Indemnity By Customer. Subject to the terms of Section 8.2, Customer agrees to indemnify Manufacturer against any third party claims against Manufacturer for loss, damage, liability, or expense (including but not limited to attorneys’ fees) arising out of any acts or omissions of Customer in connection with their activities under this Agreement, including with respect to Customer’s representations and warranties under this Agreement.
8.2 Indemnity by Manufacturer.
(a) Duty to Indemnify.
(i) Manufacturer will indemnify and hold Customer harmless from and against, and will defend or settle at Manufacturer’s own expense, any action or other proceeding brought against Customer to the extent that it is based on a claim that the Products or Fort Platform infringe any U.S. copyright or U.S. patent issued as of the Effective Date, or that the Products or Fort Platform incorporate any misappropriated trade secrets.
(ii) Manufacturer will pay any and all costs, damages, and expenses (including but not limited to reasonable attorneys’ fees) finally awarded against Customer in any such action or proceeding attributable to any such claim.
(iii) Manufacturer will have no obligation under this Section as to any action, proceeding, or claim unless: (A) Manufacturer is notified of it promptly; (B) Manufacturer has sole control of its defense and settlement; and (C) Customer provides Manufacturer with reasonable assistance in its defense and settlement.
(iv) If any Products, the Fort Manager, or the Fort Platform are, or in Manufacturer’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer's or any End User's use of the Products, the Fort Manager, or the Fort Platform is enjoined or threatened to be enjoined, Manufacturer may, at its option: (A) obtain the right for Customer to continue to use the Products, the Fort Manager, or the Fort Platform as contemplated by this Agreement; (B) modify or replace the Products, the Fort Manager, or the Fort Platform, in whole or in part, to seek to make the Products, the Fort Manager, or the Fort Platform (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Products, the Fort Manager, or the Fort Platform, as applicable, under this Agreement; or (C) by written notice to Customer, terminate this Agreement with respect to all or part of the affected Products, the Fort Manager, or the Fort Platform, and require Customer to immediately cease any use of the Products, the Fort Manager, or the Fort Platform, or any specified part or feature thereof.
(b) Sole Remedy. THE FOREGOING ARE MANUFACTURER’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH THE PRODUCTS OR SOFTWARE.
(c) Exclusions. Manufacturer will have no obligations under this Section 8.2 with respect to infringement or misappropriation arising from (i) modifications to the Products, the Fort Manager, or Fort Platform that were not authorized by Manufacturer, (ii) Product specifications requested by Customer, or (iii) the use of the Products, the Fort Manager, or Fort Platform in combination with products not provided by Manufacturer.
9. LIMITATIONS OF LIABILITY.
9.1 Total Liability. MANUFACTURER’S TOTAL LIABILITY TO CUSTOMER UNDER THIS AGREEMENT WILL BE LIMITED TO THE PAYMENTS RECEIVED FROM CUSTOMER UNDER THIS AGREEMENT.
9.2 Exclusion of Damages. IN NO EVENT WILL MANUFACTURER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF USE, DATA, BUSINESS OR PROFITS, OR FOR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS, SOFTWARE OR SERVICES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING PRODUCT LIABILITY), EVEN IF MANUFACTURER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 Exceptions. The limitations of liability set forth herein shall not apply to (i) claims by Manufacturer for breach by Customer or End User of Section 2, or infringement or misappropriation of Manufacturer’s Intellectual Property Rights; (ii) claims of breaches of confidentiality under Section 6; (iii) Customer’s indemnification obligations set forth under Section 8; or (iv) claims of gross negligence or willful misconduct.
9.4 Failure of Essential Purpose. The parties have agreed that the limitations specified in this Section 9 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
10. COMPLIANCE WITH LAW.
Each party agrees to comply with all applicable laws, rules, and regulations in connection with its activities under this Agreement. Without limiting the foregoing, Customer acknowledges that all Products, the Fort Manager, and Fort Platform, including documentation and other technical data, are subject to export controls imposed by the U.S. Export Administration Act of 1979, as amended (the “Act”), and the regulations promulgated thereunder. Customer will not export or reexport (directly or indirectly) any Products, the Fort Manager, Fort Platform or documentation or other technical data therefor without complying with the Act and the regulations thereunder.
11. Term and Termination.
11.1 Term. This Agreement commences as of the Effective Date of the Order Acknowledgement and, unless terminated earlier pursuant any of this Agreement's express provisions, will continue in effect for the period specified in such Order Acknowledgement.
11.2 Termination. In addition to any other express termination right set forth elsewhere in this Agreement: (i) Manufacturer may terminate this Agreement, effective on written notice to Customer, if Customer (A) fails to pay any amount when due hereunder, and such failure continues more than 30 days after Manufacturer’s delivery of written notice thereof; or (B) breaches any of its obligations under Sections 2, 4, 6, 7.3, 8.1, or 10; (ii) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; or (iii) either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
11.3 Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement: (i) all rights, licenses, consents, and authorizations granted by Manufacturer hereunder will immediately terminate; (ii) Customer shall (A) immediately cease all use of the Products, Fort Manager, and/or Fort Platform; (B) return, or Manufacturer’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on the Manufacturer’s Confidential Information; and (C) permanently erase all Manufacturer Confidential Information from all systems Customer directly or indirectly controls; or (iii) Manufacturer may disable all Customer and End User access to the Fort Materials or Fort Platform. If Manufacturer terminates this Agreement due to a material breach by Customer or breach of Customer of its representations or warranties hereunder, all amount that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such amount, together with all previously accrued but not yet paid amounts, on receipt of Manufacturer’s invoice therefor.
11.4 Survival. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Sections 1, 2.2, 2.5, 4, 6, 7.3, 7.4, 9, 10, 11.4, and 12.
12. GENERAL.
12.1 Assignment. Customer may not assign this Agreement, in whole or in part, without Manufacturer’s written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Any attempt to assign this Agreement without such consent will be null and void. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
12.2 Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, excluding its body of law controlling conflict of laws. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Delaware and the parties irrevocably consent to the personal jurisdiction and venue therein.
12.3 Severability. If any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in force.
12.4 Force Majeure. Except for payments due under this Agreement, neither party will be responsible for any failure to perform due to causes beyond its reasonable control (each a “Force Majeure”), including, but not limited to, acts of God, war, riot, embargoes, acts of civil or military authorities, denial of or delays in processing of export license applications, fire, floods, earthquakes, accidents, strikes, pandemics, epidemics, public health emergencies, or fuel crises, provided that such party gives prompt written notice thereof to the other party. The time for performance will be extended for a period equal to the duration of the Force Majeure.
12.5 Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; or (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid. All such notices will be sent to the addresses set forth above or to such other address as may be specified by either party to the other party in accordance with this Section.
12.6 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
12.7 Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
12.8 Entire Agreement. This Agreement, together with the applicable Order Acknowledgements, the terms of which are incorporated herein by reference, constitutes the complete and exclusive agreement of the parties with respect to its subject matter and supersedes all prior understandings and agreements, whether written or oral, with respect to its subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties hereto.
FORT Robotics, Updated 2/23/2026
