END USER LICENSE AGREEMENT
Last updated June 21, 2024
This End User License Agreement (“EULA”) is entered into between Moxion Power Co. (“Moxion”) and the purchaser (“Customer”) of Products. This EULA will govern irrespective of whether Customer accepts this EULA by a written acknowledgment, by implication, or by acceptance of, or payment for, Products. If Customer does not accept this EULA, Customer must return the Product(s) to Moxion or its authorized solution partner prior to installation or use for a refund. Subject to Section 9.5, any term, condition, or other provision (including any prior or subsequent understanding, agreement, or trade custom) that is different from, inconsistent with or in addition to this EULA, whether in a purchase order, receipt, acceptance, confirmation, correspondence or otherwise will not apply to sales and purchases of Products and is hereby rejected, provided, however, that the Terms of Sale (as defined in Section 4.2) will govern with respect to purchase and use of Hardware. If any or all of this EULA is unacceptable to Customer, Customer will not accept or use any of the Products and will promptly return any Products in the original shipping package material.
1. DEFINITIONS
1.1. “Documentation” means user documentation provided by Moxion for Software or Hardware. Documentation includes license specifications, technical specifications and instructions for use.
1.2. “Hardware” means the hardware components of Products and any other equipment, devices, accessories, and parts delivered by Moxion hereunder.
1.3. “Products” means Software, Hardware, and Documentation.
1.4. “Software” means software provided or made accessible by Moxion to Customer, whether as part of a Product or in connection with the use of a Product, including updates, modifications, design data, and all copies thereof.
1.5. “Moxion IP” means all patents, copyrights, trade secrets, and other intellectual property rights in or related to Products.
2. DELIVERY
2.1. Delivery of Software. Delivery of Software occurs when Moxion makes Software available to Customer via electronic download or as part of a Product.
3. SOFTWARE LICENSE TERMS
3.1. License Grant and Conditions.
3.1.1. License Grant. Subject to the terms of this EULA, Moxion grants Customer a nonexclusive, nontransferable, limited license to install (except with respect to firmware) and use Software and related Documentation for Customer’s internal business purposes and/or personal use solely in connection with applicable Hardware. Software is provided in object code form only, unless otherwise specified in this EULA. Software comprises the trade secrets of Moxion or its licensors. Moxion or its licensors retain title to and ownership of Software and Moxion IP. Moxion reserves all rights in Products and Moxion IP not expressly granted herein.
3.1.2. License Compliance. Moxion reserves the right to embed a reporting mechanism in Software to determine unauthorized use of licenses.
3.1.3. Third-Party and Open Source Software. Products may contain third-party technology, including open source software (“Third-Party Technology”). Third-Party Technology may be licensed by third parties under separate terms (“Third-Party Terms”). Third-Party terms control solely with respect to Third-Party Technology. If Third-Party Terms require Moxion to furnish Third-Party Technology in source code form, Moxion will provide it upon written request and payment of any shipping charges.
3.2. Transfer and Remarketing of Software. Unless otherwise provided in this EULA or required to be permitted by applicable law, Customer will not cause or permit the transfer, loan, lease, publication, or use of Software to or for the benefit of any third party without the prior written consent of Moxion.
3.3. Reverse Engineering, Modification. Customer will not reverse engineer, decompile, or otherwise attempt to discover the source code of Software. Customer will not otherwise modify, adapt, or merge Software. Customer will not subject Software to any open source software license that conflicts with this EULA or that does not otherwise apply to such Software. Customer will not use Software for the purpose of developing or enhancing any product that is competitive with Software. The restrictions set out in this Section do not apply to the extent they conflict with mandatory applicable law.
4. WARRANTIES AND DISCLAIMERS
4.1. Defects. Moxion warrants that, for a period of 90 days following the date Software is initially made available to Customer, it will provide the material features and functions described in the Documentation. The foregoing warranty excludes (i) Software provided at no charge, and (ii) Software that is designated as retired or not generally supported. Moxion’s entire liability and Customer’s exclusive remedy for a breach of this warranty will be, at Moxion’s option, to correct or work around errors, or replace defective Software or refund license fees expressly paid for defective Software returned by Customer (if any). For clarity, Moxion will have no liability under this EULA for refunding amounts paid for Hardware and not expressly allocated to license of the applicable Software.
4.2. Hardware. The warranties and obligations of Moxion, and the remedies of Customer, provided hereunder do not apply to Hardware. Such warranties, obligations and/or remedies (if any) are set forth in Moxion’s Terms and Conditions of Sale (available at www.moxionpower.com/lega/termsofsale) (“Terms of Sale”) and Limited Warranty (available at www.moxinpower.com/warranty).
4.3. Disclaimer. MOXION MAKES NO WARRANTIES EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN THIS AGREEMENT. REPRESENTATIONS ABOUT PRODUCTS, FUNCTIONALITY, OR SERVICES IN ANY COMMUNICATION WITH CUSTOMER CONSTITUTE TECHNICAL INFORMATION, NOT A WARRANTY OR GUARANTEE. MOXION DISCLAIMS ALL OTHER WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. MOXION DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
5. LIMITATION OF LIABILITY AND INDEMNIFICATION
5.1. Limitation of Liability. THE ENTIRE, COLLECTIVE LIABILITY OF MOXION, MOXION’S AFFILIATES, MOXION’S LICENSORS, AND THEIR REPRESENTATIVES (the “MOXION PARTIES”), FOR ALL CLAIMS AND DAMAGES RELATED IN ANY WAY TO THIS AGREEMENT, IN THE AGGREGATE AND REGARDLESS OF THE FORM OF ACTION, WILL BE LIMITED TO THE GREATER OF (A) THE AMOUNT PAID TO MOXION FOR THE SOFTWARE LICENSE THAT GAVE RISE TO THE CLAIM; OR (B) ONE HUNDRED U.S. DOLLARS ($100.00). THE FOREGOING LIMITATION DOES NOT APPLY TO MOXION’S INDEMNITY OBLIGATION IN SECTION 6. IN NO EVENT WILL THE MOXION PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, LOSS OF PRODUCTION, INTERRUPTION OF OPERATIONS, OR LOST DATA OR PROFITS, EVEN IF SUCH DAMAGES WERE FORESEEABLE. FOR PRODUCTS AND SERVICES PROVIDED AT NO CHARGE, THE MOXION PARTIES WILL HAVE NO LIABILITY WHATSOEVER. CUSTOMER MAY NOT MAKE A CLAIM UNDER THIS AGREEMENT MORE THAN TWO (2) YEARS AFTER THE EVENT GIVING RISE TO THE CLAIM IS OR SHOULD HAVE BEEN DISCOVERED BY CUSTOMER.
6. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNITY.
6.1. Infringement Claim Indemnity. Moxion will defend or settle, at its expense, any action brought against Customer to the extent that it is based on a claim that any Software infringes any registered U.S copyright or patent, and will pay all damages finally awarded against Customer by a court of competent jurisdiction or agreed in a settlement, provided that Customer gives Moxion (i) prompt written notice of the claim, (ii) all requested information and reasonable assistance related to the claim, and (iii) sole authority to defend or settle the claim. Moxion will not admit liability or incur obligations on Customer’s behalf without Customer’s prior written consent, which will not be unreasonably withheld.
6.2. Injunction. If a permanent injunction is obtained against Customer’s use of Software, Moxion will obtain for Customer the right to continue using the Software or will replace or modify the Software to become non infringing. If such remedies are not reasonably available, Moxion will refund the license fees (if any) paid for the enjoined Software for the remainder of the license term and Customer will cease use of and return of any related Hardware in which such Software is embodied. Moxion may, in its sole discretion, provide the remedies specified in this Section to mitigate infringement prior to the issuance of an injunction.
6.3. Exclusions. Notwithstanding anything to the contrary herein, Moxion will not have any liability or indemnification obligation to Customer to the extent that an infringement claim arises out of (i) use of a prior version of the Software to the extent that a current version is non-infringing, (ii) failure to use a correction, patch, or new version of the Software offered by Moxion, (iii) use of the Software in combination with software, equipment, data, or products not provided by Moxion, (iv) use of Software provided at no charge (v) use of Software that is designated as retired or not generally supported as of the date the applicable claim arose, (vii) any adjustment, modification, or configuration of a Product not made by Moxion, or (vii) instructions, assistance, or specifications provided by Customer.
6.4. Sole and Exclusive Remedy. Section 6.1 sets forth the sole and exclusive liability of Moxion to Customer for infringement of third-party intellectual property rights.
7. TERMINATION
7.1. Termination. Licenses for a limited term terminate upon expiration of the term. Moxion may immediately terminate this EULA or any Software license granted upon notice to Customer (i) for reasonable cause, including, without limitation, Customer’s unauthorized installation or use of Software, Customer filing or being filed in bankruptcy, Customer ceasing to do business, or any breach of Sections 3.2, 3.3 or 8 of this EULA, (ii) in order to comply with the law or requests of governmental entities, or (iii) for any other breach that remains uncured after thirty (30) days’ notice thereof.
7.2. Effect of Termination. Upon termination of this EULA, the licenses granted hereunder automatically terminate. Upon termination of any license, Customer will immediately remove and destroy all copies of Software and Documentation, and certify such removal and destruction in writing to Moxion. No refund or credit will be given as a result of termination under Section 7.1. Termination of this EULA or any license granted hereunder will not relieve Customer of its obligation to pay any unpaid fees, which fees will become due and payable immediately upon termination. Sections 1, 3.2, 3.3, 4.3, 5, 6, 7.2, 8.2 and 9 survive termination of this EULA.
8. EXPORT COMPLIANCE
8.1. Export. Moxion’s obligations under this EULA are conditioned upon Customer’s compliance with, and Customer agrees to comply with, all applicable export and re-export controls, embargoes, and economic and trade sanctions laws and regulations, including without limitation those of the United States and the European Union (“Export Laws”). Customer represents that any Software provided hereunder and any derivatives thereof will not be (i) downloaded or accessed by a Sanctioned Person, (ii) exported, re-exported (including any ‘deemed exports’), shipped, distributed, delivered, sold, resold, supplied, or otherwise transferred, directly or indirectly, to any Sanctioned Person or otherwise in a manner contrary to the Export Laws, (iii) used for any purpose prohibited by the Export Laws, or unless expressly authorized by Moxion in writing, (iv) used for non-civilian purposes (e.g. armaments, nuclear technology, weapons, any other usage in the field of defense and military). Without limiting the foregoing, Customer represents and warrants that (a) it is not a Sanctioned Person, and (b) it will not download or otherwise access, or facilitate a third party’s download or access of, any Software from a Sanctioned Country. “Sanctioned Country” means a country or territory that is itself the subject or target of any comprehensive trade or economic sanctions. “Sanctioned Person” means any person (A) listed in the Specially Designated Nationals and Blocked Persons List maintained by the U.S. Department of Treasury’s Office of Foreign Assets Control or in any Export-Control-Related list of designated persons maintained by the U.S. Department of Commerce, the U.S. Department of State, the United Nations Security Council, the European Union, any Member State of the European Union, or the United Kingdom; (B) operating, organized, or resident in a Sanctioned Country; (C) the government of, or acting for or on behalf of the government of, a Sanctioned Country; or (D) owned or controlled by one or more such persons.
8.2. Remedies, Indemnification. In the event that Customer fails to comply with any provision of this Section 8 or violates any Export Laws in connection with Software, Moxion will have the right to take action in accordance with the terms of this EULA and as required by U.S. law or the applicable law. Further, Customer will indemnify and hold harmless Moxion, its affiliates and their representatives against any claims, damages, fines, and costs (including attorney’s fees and expenses) relating in any way to Customer’s noncompliance with this Section 8, including Customer’s violation or alleged violation of any Export Laws.
8.3. Impediments. Moxion will not be obligated to perform under this EULA if such performance is prevented by any impediments arising out of national or international foreign trade or customs requirements or any embargoes or other sanctions including, but not limited to, embargoes or other sanctions imposed by the United Nations, the European Union, or the United States.
9. ADDITIONAL TERMS AND CONDITIONS
9.1. Notices. Unless otherwise stated herein, all notices required or permitted by this EULA will be in writing and will be delivered to the other party: (i) in person; (ii) by certified or registered mail, return receipt requested, postage prepaid; or (iii) by a reputable international courier with tracking capabilities, postage prepaid. Notices to Moxion will be delivered to Customer Support Center, 1414 Harbour Way S., Richmond, CA 94804 or to such other address as Moxion may designate in writing from time to time.
9.2. No Waiver; Amendments; Severability. The failure of Moxion to enforce at any time or for any period of time any of the provisions of this EULA will not constitute a waiver of such provisions. No amendment, modification, or waiver of this EULA will be valid unless set forth in a written instrument signed by both parties. In the event any one or more of the provisions contained in this EULA is deemed illegal or unenforceable, such provision (a) will be automatically construed and adjusted in a manner which enables it to be valid and enforced to the extent permitted by applicable law and which most nearly effects the parties’ intent in entering into this EULA, and (b) will not affect the validity and enforceability of any other provision of this EULA.
9.3. Assignment. Customer may not assign (directly or indirectly, by operation of law or otherwise) or delegate this EULA or its rights or obligations under this EULA without written consent of Moxion. Any attempted assignment without such consent will be void. Moxion may freely assign and delegate this EULA and this EULA will bind and inure to the benefit of Moxion’s successors and assigns, including without limitation, any entity into which Moxion will merge or consolidate.
9.4. Governing Law. This EULA will be governed by the laws of the State of California without regard to conflict of law rules. The United Nations Convention on the International Sale of Goods will not apply to this EULA or to any of the transactions contemplated hereby. Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction and venue of the state courts within San Francisco, California and the federal courts of the Northern District of the State of California, and each party hereby consents to personal jurisdiction in such forum, for any actions, suits or proceedings arising out of or relating to this EULA (and agrees not to commence any action, suit or proceeding relating thereto except in such courts). Notwithstanding the foregoing, nothing in this EULA will prevent Moxion from pursuing an injunctive relief or filing any action to recover amounts owed to Moxion by Customer in any court having jurisdiction over Customer.
9.5. Entire Agreement. This EULA constitutes the entire agreement between Customer and Moxion and supersede any other prior, contemporaneous or subsequent oral or written agreements, understandings or communications relating to the subject matter hereof. Notwithstanding the foregoing, in the event Moxion and Customer enter into a written supply or purchase agreement signed by authorized representatives of both parties, the terms of such agreement will prevail in the event of any inconsistency or conflict with this EULA.