Aeries Terms & Conditions of Evaluation
Aeva, Inc. Terms & Conditions for Evaluation
(effective December 2022)
1. General. THESE TERMS AND CONDITIONS (“TERMS”) APPLY TO THE PURCHASE OF PRODUCT BY YOU AND/OR YOUR AFFILIATES (“BUYER”) FROM AEVA, INC. (“AEVA”). BUYER’S ACCEPTANCE OF THE PRODUCTS WILL CONSTITUTE BUYER’S ACCEPTANCE OF THESE TERMS. NO MODIFICATION OR WAIVER OF ANY OF THE TERMS AND CONDITIONS CONTAINED HEREIN AND NO ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS WILL BE EFFECTIVE IN CONNECTION WITH SUCH PURCHASE, UNLESS EXPRESSLY AGREED TO IN WRITING AND SIGNED BY BOTH PARTIES.
2.1 Delivery. Unless otherwise provided in an acknowledged and accepted purchase order, shipments of Products shall be FCA (Incoterms 2010) Aeva’s place of shipment/export, and title (exclusive of the Software incorporated therein) and risk of loss or damage shall pass from Aeva to Buyer upon Aeva’s delivery of the Products to the designated carrier at the place of shipment/export. In the absence of specific routing instructions provided by Buyer, Aeva reserves the right to select the common carrier and method of shipment for the Product, with all transportation and customs charges to be paid by Buyer, however, Aeva shall be responsible for all export details and licenses. Buyer shall inspect delivered Products and within forty-eight (48) hours after receipt of the Product. Buyer will request a return merchandise authorization (“RMA”) from Aeva for all Product that Buyer believes were damaged at the time of delivery. Upon Aeva’s receipt of the RMA and damaged Products from Buyer, Aeva shall confirm any alleged damage, and promptly repair or replace the damaged Products.
2.2 Permitted Uses. BUYER MAY USE THE PRODUCTS AND/OR SOFTWARE ONLY FOR ITS INTERNAL EVALUATION, RESEARCH, DEVELOPMENT, TESTING, INTEGRATION AND IMPLEMENTATION WITH BUYER’S PRODUCTS (THE “PURPOSE”).
2.3 Use Restrictions & Intellectual Property Rights. The Software and Documentation are strictly licensed and not sold. Buyer will not use the Software or Documentation except as expressly set forth herein. Subject to these Terms, Aeva grants to Buyer a personal, non-exclusive, non-assignable and non-transferable license to use and display the Software, solely for use with and implementation and integration with Buyer’s products. Unauthorized copying or distribution of the Software, including, without limitation, software that has been modified, merged or included with the Software, or the written materials associated therewith, is expressly forbidden. You may not sublicense, assign, or transfer this license or the Software except as permitted in writing by Aeva. Any attempt to sublicense, assign or transfer any of the rights, duties or obligations under this license is void and will result in termination by Aeva. Buyer will not, and will not permit any third party to, (i) distribute, copy, modify, reverse engineer, translate, reduce to human perceivable form, port, disassemble or decompile, transfer, relicense, sublicense, rent, and/or lease or create derivative works of the Software, (ii) remove any Software from the Product, (iii) provide the Software to any third party, and/or (iv) or create or attempt to create, or permit others to create or attempt to create, by reverse engineering or otherwise, the source programs or any part thereof from the object programs or from other information made available under these Terms. Aeva retains all right, title and interest in and to the intellectual property rights in, to and under the Software and Products, subject only to the limited license set forth herein. Aeva may terminate the license granted to Buyer under Section 2.2 upon Buyer’s breach of these Terms.
3. Payment. Buyer will pay the invoiced amount within thirty (30) days after the date of Aeva’s delivery of the Product. Payments are non-refundable, non-creditable and are exclusive of all taxes or government fees. Buyer will pay all applicable tax and government fees. If a transaction is exempt from tax, Buyer will provide Aeva with a valid exemption certificate or other evidence of such exemption in a form acceptable to Aeva. Any amounts payable by Buyer hereunder that remain unpaid after the due date will be subject to a late charge equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate allowable by law from the due date until such amount is paid. Buyer will pay all amounts due to Aeva in U.S. dollars, unless otherwise provided in the Accepted Order.
4. Feedback and Improvements. To the extent Buyer provides feedback and/or improvements to Aeva relating to the Product and/or Software, Aeva will be free to use, disclose, reproduce, modify, sublicense, transfer, distribute and exploit any such feedback and/or improvements, in whole or in part, in any manner.
5. Warranty. No warranty is provided on the Software. Subject to the foregoing, Aeva warrants that for a period of twelve (12) months after delivery to Buyer (“Warranty Period”), the Product (exclusive of the Software) will (a) conform to the specifications provided with the Product and any statements made on the containers for, or labels on, the Product, (b) be free from material defects in materials or workmanship, and (c) to Aeva’s knowledge, be free of malicious code such as viruses, trap doors, time bombs and other intentionally destructive or disabling code. Aeva makes no warranties or conditions with respect to Products which have been the subject of unauthorized sales or subjected to misuse, neglect, accident or abuse or have been improperly installed, operated, stored, maintained, repaired, or altered by anyone other than Aeva, or had their serial numbers or month and year of manufacture or shipment removed, defaced or altered, or combined with unintended non-Aeva products. AEVA MAKES NO WARRANTIES FOR SERVICE, SOFTWARE, MAINTENANCE OR SUPPORT, WHICH ARE PROVIDED “AS IS,” AND THE WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE, AND BUYER HEREBY WAIVES, ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.
6. Orders. Buyer may only cancel or modify an order prior to its written Acceptance by Aeva.
7. Confidentiality. Buyer agrees that the non-disclosure and confidentiality terms executed by the parties in effect as of the provision of the Products shall be incorporated herein by reference and govern these Terms. Aeva’s Confidential Information includes, but is not limited to, the Product, the Software the Documentation, these Terms (including pricing), and all other information and materials identified as confidential by Aeva.
8.1 Buyer Indemnification. Buyer will defend, indemnify and hold harmless Aeva against any and all claims, actions, demands, suits, or proceedings, and/or settle any such claims, filed by third parties (“Claims”) arising from any breach by Buyer or its affiliates of these Terms or any violation of applicable laws, rules or regulations. Buyer will pay any loss, liability, damage or cost (including reasonable attorneys’ fees) (“Losses”) attributable to such Claims that are awarded against Aeva in a final judgment, or that must be paid pursuant to a settlement agreed to in writing by Buyer. In the event a Claim as described in this Section 8.1 is brought against Aeva: (a) Aeva will promptly notify Buyer of the Claim, (b) Aeva will give Buyer full information and reasonable assistance in connection with the Claim, and (c) Buyer will have sole control of the defense and settlement thereof.
8.2 Aeva Indemnification. Aeva will defend, indemnify and hold harmless Buyer against any and all Claims, and/or settle any such Claims, alleging that the Product and/or Software infringes any third-party copyright or patent or misappropriates any third-party trade secret. Aeva will pay any Losses attributable to such Claims that are awarded against Buyer in a final judgment, or that must be paid pursuant to a settlement agreed to in writing by Aeva. In the event of a Claim described in this Section 8.2 is brought against Buyer: (a) Buyer will promptly notify Aeva of the Claim, (b) Buyer will give Aeva full information and reasonable assistance in connection with the Claim, and (c) Aeva will have sole control of the defense and settlement thereof. THE FOREGOING INDEMNIFICATION OBLIGATIONS ARE AEVA’S SOLE AND EXCLUSIVE OBLIGATIONS, AND BUYER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
9. Limitation of Liability. IN NO EVENT WILL AEVA BE LIABLE TO BUYER AND/OR ITS CUSTOMERS, DIRECTLY OR INDIRECTLY, FOR LOSS OF ANTICIPATED REVENUE OR PROFITS, INTEREST, PENALTIES OR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, MULTIPLE, OR EXEMPLARY DAMAGES OR LIABILITIES IN CONNECTION WITH THESE TERMS, WHETHER FOR BREACH OF CONTRACT, PROPERTY DAMAGE, PERSONAL INJURY, ILLNESS, OR DEATH OR OTHERWISE. BUYER AGREES THAT AEVA’S LIABILITY IN ANY DISPUTE WILL BE CAPPED AT THE TOTAL FEES PAID BY BUYER TO AEVA.
10. Governing Law; Dispute Resolution. Any disputes arising out of or relating to these Terms will be governed by the internal laws of the State of California, without giving effect to its choice of law principles. Any legal suit, action or proceeding arising out of or relating to these Terms will be determined by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures. The seat or place of arbitration shall be San Francisco, California, and the arbitration shall be conducted and the award shall be rendered in English.
11. Assignment. Buyer may not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, these Terms or any rights or obligations under these Terms, except that either Buyer or Aeva may assign these Terms without consent of the other party in connection with a merger, consolidation, corporate reorganization, or sale of all or substantially all of its business or assets pertaining to the subject matter of these Terms. Any purported assignment, transfer, delegation or other disposition by Buyer will be null and void. Subject to the foregoing, these Terms will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
12. Export Regulations. Buyer’s purchase is subject to, and Buyer is responsible for, compliance with the export control and economic sanctions laws of the United States and other applicable jurisdictions (“Export Laws”). Buyer and Aeva will comply with all relevant Export Laws and regulations, including, without limitation, the U.S. Export Administration Regulations. Buyer shall ensure strict compliance with these Terms in the country(ies) where the Products and/or Software are exported.
13. Force Majeure. Neither party will be liable under these Terms because of any failure or delay in the performance of its obligations (except for payment of money) on account of pandemics, strikes, shortages, riots, fire, flood, storm, earthquake, acts of God, hostilities or any other cause beyond its reasonable control.
14. Severability. In the event that any provision (or portion thereof) of these Terms is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, such provision (or portion thereof) will be severed and deleted from these Terms, while the remainder of these Terms will continue in full force and remain in effect according to its stated terms and conditions.
15. Waiver. The waiver by either party of any default or breach of these Terms will not constitute a waiver of any other or subsequent default or breach. Failure by either party to exercise or enforce any rights hereunder will not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
16. Audit and Inspection Rights. Aeva and its authorized representatives shall have the right from time to time to access Buyer’s premises and records to verify: (a) Buyer’s compliance with these Terms; and (b) Buyer’s performance or ability to perform under these Terms. In the event that Aeva determines, in Aeva’s reasonable and sole discretion, Buyer has not or will not be able to perform its duties and covenants under these Terms, or that Buyer is in or at risk of financial distress and/or eventual insolvency, Aeva shall have the option to buy back the Products at a price not to exceed its original price and Buyer shall provide its cooperation to ensure that the Products are timely returned to Aeva.
17. Survival. Sections 1, 2.2, 2.3, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 20 shall survive termination of these Terms.
18. Complete Agreement. These Terms constitute the complete agreement between the parties and supersede all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of these Terms.
19. Termination. Aeva may immediately terminate these Terms upon an uncurable breach by Buyer or a breach by Buyer that remains uncured for thirty (30) days after notice from Aeva.
“Acceptance” or “Accepted” means Aeva’s written acceptance of a purchase order from Buyer for the Products.
“Documentation” means the applicable printed and digital instructions, user guides, policies, online help files, technical documentation, and manuals for installation and use of the Product and/or Software, as updated from time to time, that Aeva makes generally available to its buyers. Documentation is not considered a deliverable or a work-made-for-hire.
“Product” means the Aeva sensing system (including the Software incorporated therein, except as otherwise expressly stated herein) and/or Software that is provided by Aeva to Buyer or Buyer purchases under these Terms, as identified in the purchase order that references these Terms, or in connection with which these Terms are provided.
“Product Data” means any data generated, produced, or otherwise outputted by the Product.
“Software” means Aeva’s software product or Aeva’s firmware and software incorporated in the Product provided as a by Aeva to Buyer under these Terms, including all old and new versions of such firmware and software, as well as any accompanying visualization or analysis software tools including, but not limited to, Aeviz™ that Aeva makes generally available to licensees of such firmware at no additional license fee. Software is not considered a deliverable or a work-made-for-hire.