This Original Equipment Manufacturer (OEM) Partner Agreement (“Agreement”) constitutes a binding legal agreement between you, in your capacity as an original equipment manufacturer, individually and/or on behalf of your company, organization, educational institution, or agency as its authorized representative (hereafter, “OEM”), and CyberLock Security Solutions, Inc. (“CSS”), and establishes the terms of OEM’s participation in the CyberLock OEM Program (the “Program”), under which CSS will sell and license, and OEM will purchase, CyberLock Products (as defined below) for an OEM project. OEM’s participation in the Program is subject to approval by CSS.
IN ORDER TO PARTICIPATE IN THE CYBERLOCK OEM PROGRAM IN ANY CAPACITY, YOU MUST FIRST ACCEPT THIS AGREEMENT. IF YOU DO NOT OR CANNOT ACCEPT THIS AGREEMENT, YOU ARE NOT PERMITTED TO PARTICIPATE IN THE PROGRAM.
1. Acceptance and Electronic Acknowledgment
OEM agrees that acceptance of this Agreement may be signified electronically. OEM indicates its acceptance of this Agreement and agrees to be bound by all terms and conditions set forth herein by doing any of the following: (a) acknowledging such acceptance through clicking an “AGREE” or similar button or check box, if made available by CSS in connection with OEM’s access to this Agreement; (b) submitting an OEM Partner Application to apply for participation in the Program; (c) ordering, receiving, or accepting any CyberLock-branded access control products (“CyberLock Products”) with the intent to integrate such products into OEM’s own equipment or systems in its capacity as an original equipment manufacturer; or (d) otherwise participating in the Program in any capacity.
2. Scope
This is an as-ordered Agreement and does not, in and of itself, order any product or service. Submission of an OEM Partner Application does not guarantee that OEM will be approved for participation in the Program. CSS reserves the right to deny OEM participation in the Program for any or no reason. During the term of this Agreement and subject to OEM’s compliance with the terms and conditions herein, OEM may purchase the CyberLock Products specified in the CyberLock OEM Program online product and pricing portal (“OEM Pricing Portal”), on a non-exclusive basis, for the purpose of integrating CyberLock Products with OEM’s proprietary products, equipment, or systems and reselling the integrated product(s) under OEM’s own brand (“Permitted Purpose”). The combination of any OEM product, equipment, or system and any CyberLock Product (“OEM Product”) shall have a primary function different than that of CyberLock Products. OEM may resell CyberLock Products only as part of OEM Products, after OEM has added value through the addition of its own proprietary hardware offering. OEM agrees that it will use CyberLock Products only in connection with the Permitted Purpose.
3. Ordering and Payment
3.1 OEM may order CyberLock Products by submitting to CSS for approval, a quote generated via the OEM Pricing Portal (available via login credentials at www.cyberlocksecuritysolutions.com). Quoted prices are effective until the expiration listed on the quote. All orders will be governed by this Agreement, together with the CSS Terms and Conditions of Sale (which are incorporated herein by this reference) contained in any CSS quotation, acknowledgment, or invoice. In the event of a conflict or inconsistencies between this Agreement and the Terms and Conditions of Sale with respect to the same subject matter, this Agreement shall govern, but only to the extent necessary to resolve the conflict or inconsistency and the remaining provisions of each respective agreement shall remain in full force and effect. Unless otherwise agreed to in writing by CSS, all orders must be paid in full prior to shipment of CyberLock Products or commencement of work for services.
3.2 The prices for all CyberLock Products purchased by OEM under this Agreement are specified on the OEM Pricing Portal. All pricing provided to OEM is in US dollars. Additional products may be ordered by mutual agreement of the parties, at prices established by CSS in its sole discretion. CSS may update prices for CyberLock Products from time to time by publishing updated pricing information on the OEM Pricing Portal. CSS does not represent that it will continue to offer for sale any particular item or model of product indefinitely, or even for any specific period. CSS reserves the right to revise or discontinue offering CyberLock Products or related services at any time in its sole discretion. CSS will notify OEM at least sixty (60) days prior to any scheduled End of Life for a CyberLock Product. OEM agrees that CSS may, at any time prior to shipment of an order, substitute CyberLock-branded products that meet or exceed the published capabilities of ordered products.
4. Relationship of the Parties
4.1. The relationship of the parties established by this Agreement is that of independent contractors. Nothing contained in this Agreement is intended to establish a partnership, agency, joint venture, franchise, business opportunity, or employment relationship between OEM and CSS, or to impose upon the parties any of the duties or responsibilities of such relationships. Use of the word “partner” or “partnership” in this Agreement, on the OEM Pricing Portal, or in any other materials made available to OEM in connection with its participation in the Program does not mean legal partner and does not create a legal partnership between the parties. OEM and CSS have absolutely no right to share in profits or losses, whether from the sale of CyberLock Products, OEM Products, or related activities.
4.2. OEM has no authority to make any commitment on behalf of CSS, including, without limitation, any commitment with respect to quantities, delivery, modifications, compatibility with third-party products or software, suitability of software, or suitability in specific applications. OEM has no authority to modify the CyberLock OEM Limited Hardware Warranty offered by CSS, as set forth in Section 9.1. This Section 4.2 shall not be interpreted to limit or prohibit OEM’s ability to offer, at its sole risk and expense, its own warranty terms in connection with its sale or lease of OEM Products. In no event shall CSS be responsible for or legally bound by any representations or warranties made by OEM.
4.3. OEM shall not represent itself in any manner that implies OEM is an agent or branch of CSS, or that the parties have any relationship other than that of independent contractors. OEM shall not claim or imply that it is the designer or manufacturer of CyberLock Products. Upon notice from CSS, OEM shall immediately change or discontinue any representation, advertisement, or business practice that CSS deems misleading or deceptive.
4.4 OEM will be solely responsible for determining and establishing the prices and fees it charges its customers for OEM Products, and for determining payment terms and collecting payment from its customers. CSS makes no guarantee or representation regarding OEM’s ability to profit from the sale of OEM Products.
5. Term, Limitations, Termination
5.1. This Agreement has a term of one (1) year commencing on the date that CSS approves OEM for participation in the Program. This Agreement will automatically renew on each subsequent year for an additional one-year term, unless it is terminated earlier in accordance with Section 5.2 or Section 5.3.
5.2. Either party can terminate this Agreement without cause at any time upon sixty (60) days written notice or with cause at any time upon thirty (30) days written notice. Except as expressly provided in Section 5.3, expiration or termination of this Agreement does not release either party from any obligation that accrued prior to the effective date of such expiration or termination. Upon termination or expiration of this Agreement, OEM shall immediately pay all outstanding fees and invoices. If OEM is entitled, whether under local law or otherwise, to any special payment or termination indemnity as a result of termination or expiration of this Agreement, OEM hereby waives and disclaims any right to such payment or indemnity.
5.3. Within three (3) months following CSS being made aware of a Change of Control of OEM, CSS may terminate this Agreement immediately upon written notice. If CSS terminates this Agreement in accordance with this Section 5.3, CSS shall be automatically released from, and OEM will be deemed to have released CSS from, any and all outstanding orders and obligations related to delivery or supply of CyberLock Products to OEM, including any such obligations that may have accrued prior to termination. For purposes of this Agreement, a Change of Control shall mean the occurrence of any one of the following events: (a) a sale, transfer, or other disposition of all or substantially all of the assets of OEM to another person or entity; (b) a merger or consolidation of OEM and another entity in which OEM is not the surviving corporation or in which ownership of more than fifty percent (50%) of the outstanding voting stock of, or other equity interests in, OEM changes; or (c) a person or entity acquires more than fifty percent (50%) of the total outstanding voting stock of, or other equity interests in, OEM.
6. OEM Support Commitments and Deployment Plan
6.1. As consideration for the rights and benefits granted to OEM under this Agreement and in connection with its participation in the Program, OEM agrees to establish and maintain, for all end-users of OEM Products, support services that include level 1 and level 2 support for CyberLock Products. With respect to CyberLock Products, level 1 and level 2 support means customer support services that can be resolved without a manufacturing change at the production level of the CyberLock hardware, software, and/or firmware. Level 1 and level 2 support issues can typically be resolved with product knowledge equivalent to that provided by CyberLock’s Enterprise-level training program. Non-exhaustive examples of level 1 and level 2 support include: maintaining a helpdesk to collect customer requests and information, providing product information to the customer, conducting basic troubleshooting to address common issues, conducting end-user training to facilitate proper use of the system, providing on-site technical support, performing or guiding the customer in performing recommended cleaning of CyberLock cylinders, changing batteries, resolving configuration errors in programming devices and communicators, configuring servers and hosted environments, providing software upgrades and maintenance releases in a timely manner, and assisting the customer in generating audit reports.
6.2. OEM shall pay to CSS an annual support fee at the price specified on the OEM Pricing Portal. In the event OEM purchases additional software licenses to support its OEM Products, OEM agrees to pay any support fees associated with such licenses. Subject to payment of applicable support fees, CSS will provide or, at CSS’s option, engage with the software developer or manufacturer to provide to OEM directly, level 3 support for CyberLock Products by making the following available to OEM: (a) software updates, (b) maintenance and security releases, (c) troubleshooting issues specific to CyberLock Products (e.g. not including network, certificates, virtual machines, etc.), and (d) product training and technical resources. The support services provided to OEM under this Agreement are intended to assist OEM in its provision of level 1 and level 2 CyberLock support, and not as a substitute for OEM’s obligation to provide CyberLock support to users of OEM Products. Unless otherwise agreed by the parties, support services are made available to OEM during CSS’s regular business hours. In the event an end-user of OEM Products requests level 1 or level 2 support services directly from CSS or the manufacturer, OEM agrees to pay CSS for services rendered to the end-user, at an hourly rate not to exceed $250.00/hr USD.
6.3 OEM shall maintain no less than two (2) technical support staff trained to support CyberLock systems at the Enterprise level. CyberLock Enterprise training shall be conducted for OEM on an annual basis and at no charge for the first two (2) participants. Subject to availability, OEM may purchase additional training services. OEM support staff are considered trained to support CyberLock systems at the Enterprise level if they have completed CyberLock Enterprise training at least once during any two (2) year period. CyberLock Enterprise training is a comprehensive, multi-day class offered at the manufacturer’s headquarters in Corvallis, Oregon. Due to COVID-19 safety precautions, virtual sessions are available for a limited time. OEM is responsible for all travel costs, lodging, and other expenses associated with attending in-person training.
6.4. OEM shall maintain complete and accurate distribution records by end-user customer, location of installation (if applicable), and CyberLock Product serial number. OEM shall keep CSS informed regarding any problems encountered with installation or use of CyberLock Products. OEM agrees to communicate promptly to CSS regarding any feature requests for CyberLock Products as suggested by a customer, employee, or contractor of OEM. OEM shall promptly notify CSS of any infringement of any trademarks or other proprietary rights relating to any of its offerings that include CyberLock Products.
6.5 CyberLock Products must be programmed via CyberAudit-Web management software. OEM is responsible for verifying that CyberLock Products are programmed, in accordance with manufacturer instructions, prior to end-user operation of OEM Products. No later than ten (10) days before initial delivery of OEM Products, OEM shall submit a written Deployment Plan to CSS. At a minimum, the Deployment Plan shall include a detailed description of:
(a) processes for programming CyberLock Products prior to deployment of OEM Products;
(b) a training program for educating end-users on basic operation of CyberLock Products;
(c) procedures for performing recommended maintenance of CyberLock Products in the field;
(d) infrastructure for providing end-users with access (hosted or on-site) to CyberAudit-Web software;
(e) processes for deploying maintenance releases and adopting new versions of CyberAudit-Web; and
(f) processes for handling end-user requests for new or replacement CyberLock Products (e.g. keys).
6.6. If CSS determines that OEM is in breach of its support obligations under this Section 6, CSS shall promptly notify OEM and provide OEM with a reasonable time to cure the breach. If OEM fails to cure the breach within the specified period, CSS shall, in addition to its rights to terminate this Agreement with cause, be entitled to collect from OEM additional support fees as necessary to cover any costs and expenses incurred in resolving OEM’s support deficiencies.
7. Limitation of Liability
THE TOTAL LIABILITY OF CSS FOR ALL CLAIMS OF ANY KIND ARISING FROM OR RELATED TO THIS AGREEMENT, OEM’S PARTICIPATION IN THE PROGRAM, OR THE SALE, USE, OR MISUSE OF CYBERLOCK PRODUCTS IS LIMITED TO THE GREATER OF $1,000 OR THE PRICE PAID OR PAYABLE BY OEM TO CSS, DURING THE THREE (3)-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM, FOR THE PRODUCT(S) OR SERVICE(S) DIRECTLY GIVING RISE TO THE CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY REPROCUREMENT COSTS, LOST REVENUE OR PROFITS, OR ANY OTHER CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR SPECIAL DAMAGES, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY KNOWS OR IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. OEM HEREBY, FOR ITSELF AND ITS RESPECTIVE LEGAL SUCCESSORS, HEIRS AND ASSIGNS, RELEASES AND ABSOLUTELY DISCHARGES CSS, AND EACH OF ITS OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, ASSIGNS, PARENTS OR SUBSIDIARIES, PAST AND PRESENT, OF AND FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES, LIABILITIES, COSTS, EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COURT COSTS), AND CAUSES OF ACTION OF EVERY KIND AND NATURE ARISING OUT OF OR IN CONNECTION WITH TERMINATION OF THIS AGREEMENT, EXPIRATION OF THIS AGREEMENT, OR THE REFUSAL OF CSS TO SUPPLY PRODUCT OR SERVICES TO OR AT THE REQUEST OF OEM.
8. Marketing
8.1. OEM shall use commercially reasonable efforts to market and promote sales of OEM Products. If CSS receives any inquiries from third parties seeking to purchase OEM Products, CSS agrees to promptly refer such inquiries to OEM.
8.2 During the term of this Agreement, OEM may use the name(s) of any CyberLock Products in connection with advertising and promoting its own equipment or systems that include those CyberLock Products. OEM shall not use names or logos associated with CyberLock Products, or any confusingly similar word or symbol, as part of its company name, logo, or website address. Unless otherwise expressly approved by CSS in writing, OEM agrees not to modify, remove, deface, or conceal any names, logos, or other permanent or semi-permanent markings affixed to CyberLock Products. OEM will acquire no interest in any CyberLock-related trademarks or trade names by virtue of this Agreement or its participation in the Program.
8.3. Upon expiration or termination of this Agreement, OEM shall immediately discontinue all use of CyberLock-related names or trademarks or any other combination of words, designs, trademarks, or trade names that would indicate that OEM is a CyberLock OEM Partner.
9. Limited Product Warranty
9.1. The warranty terms applicable to CyberLock Products purchased under this Agreement are specified in the CyberLock OEM Limited Hardware Warranty, which is incorporated herein by this reference.
9.2. THE CYBERLOCK OEM LIMITED HARDWARE WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES, AND CONDITIONS, WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS, OR IMPLIED. CSS DISCLAIMS ALL STATUTORY AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES AGAINST HIDDEN OR LATENT DEFECTS, AND WARRANTIES AGAINST NON-INFRINGEMENT OF THIRD-PARTY PATENT OR INTELLECTUAL PROPERTY RIGHTS. TO THE EXTENT SUCH WARRANTIES CANNOT BE DISCLAIMED, CSS LIMITS THE DURATION AND REMEDIES OF SUCH WARRANTIES TO THE DURATION OF THE CYBERLOCK OEM LIMITED HARDWARE WARRANTY AND, AT CSS’S OPTION, THE REPAIR OR REPLACEMENT SERVICES PROVIDED FOR THEREIN. SOME STATES AND COUNTRIES DO NOT ALLOW LIMITATION OF IMPLIED WARRANTIES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU. ANY BENEFIT PROVIDED UNDER THE LIMITED HARDWARE WARRANTY IS SUBJECT TO OEM SUBMITTING PAYMENT IN FULL FOR THE COVERED ITEMS. ANY ACTION FOR BREACH OF WARRANTY MUST BE BROUGHT NO LATER THAN SIX MONTHS AFTER EXPIRATION OF THE APPLICABLE WARRANTY PERIOD.
10. Software
To function properly, CyberLock Products must be managed by a valid CyberAudit-Web software deployment, whether hosted or on-site. The software license terms are made available in connection with the CyberAudit-Web software. All software (including firmware) included with CyberLock Products is licensed, not sold. OEM shall purchase software licenses from CSS, at the prices specified on the OEM Pricing Portal, as necessary to cover the total number of People Records in its CyberAudit-Web deployment(s). CSS reserves the right to audit OEM to determine its compliance with this Section 10.
11. Proprietary Information
11.1. OEM’s participation in the Program may result in CSS and/or OEM disclosing, or making available, certain Confidential Information. Confidential Information means information that is not generally known outside the disclosing party or information that is otherwise marked or designated as confidential. With respect to CSS, Confidential Information includes, but is not limited to, business, financial or technical data, specifications, software code, designs, and other information, whether oral or written, relating to the operation, design, manufacture, repair, distribution, or sale of CyberLock Products. While this Agreement is in effect, and for a period of five (5) years immediately following termination of this Agreement for any reason, the recipient of any Confidential Information must hold in confidence, including but not limited to exercising the same degree of care as the recipient exercises with its own confidential or proprietary information of a similar nature, but in no event less than a commercially reasonable degree of care, and shall not disclose to any persons, any Confidential Information, whether patentable or not and whether received previously or hereafter, without the prior written permission of the disclosing party, except that the recipient is permitted to disclose Confidential Information to (a) employees and consultants of the recipient who have a need to know such Confidential Information to carry out activities related to the Permitted Purpose, in accordance with this Agreement, and then only to the extent such employee or consultant needs to know, and who have similarly agreed in writing to the obligations contained herein; and (b) third parties as required by law, judicial action, or regulatory body, but only if the recipient provides prior notice to the disclosing party, assists the disclosing party in obtaining legal remedies to prevent such disclosure, and does not disclose any more information than expressly required. While this Agreement is in effect, and for a period of five (5) years immediately following termination of this Agreement for any reason, the recipient of Confidential Information shall not use Confidential Information for any purpose except the Permitted Purpose.
11.2. In addition to the obligations of Section 11.1, where Confidential Information disclosed by a party constitutes a trade secret (as defined by the Oregon Uniform Trade Secrets Act), the recipient shall maintain the confidence of such information for as long as it remains confidential, regardless of whether this Agreement has expired or been terminated.
11.3. The following information is not considered Confidential Information: (a) information that is or becomes part of the public domain without breach of this Agreement; (b) information that the recipient can show, by written document, was lawfully within its possession at the time of disclosure and was not acquired from the disclosing party; (c) information that the recipient can show, by written document, was developed independently without use of Confidential Information; and (d) information that the recipient can show, by written document, was lawfully acquired from a third-party who, at the time of disclosure to the recipient, was not under any obligation to keep such information confidential.
11.4. CSS is under no obligation to disclose Confidential Information to OEM. All Confidential Information, and any intellectual property rights therein, remains the sole and exclusive property of the disclosing party. Nothing in this Agreement shall be construed as transferring or granting any express or implied right, title or interest of any kind, by license or otherwise, in Confidential Information.
11.5 Except as expressly set forth herein, neither party shall acquire any right to any trademarks, patents, service marks, trade names, copyrights, commercial symbols, goodwill, or other form of intellectual or commercial property. Any limited rights expressly granted to a party herein shall be used only in connection with the party’s good faith efforts to carry out the Permitted Purpose.
11.6. OEM represents that it understands the general nature of CyberLock Products. In the event OEM were to manufacture items designed to replicate the functionality of CyberLock Products or that otherwise directly compete with CyberLock Products, exposure to Confidential Information will likely create a business advantage for OEM, and/or any entity that controls, is controlled by, or is under common control with OEM. Notwithstanding and in addition to the Section 11.1 restrictions on permitted use of Confidential Information, while this Agreement is in effect, and for a period of three (3) years immediately following termination of this Agreement for any reason, OEM agrees not to manufacture, or direct others to manufacture on its behalf, any items that simulate the functionality of or directly compete with CyberLock Products.
11.7 In the event CSS provides Confidential Information to OEM to facilitate the process of integrating CyberLock Products into OEM’s proprietary products, equipment, or systems, OEM agrees that such information will be used only in connection with OEM Products. OEM acknowledges that it does not have any right to enhance or reverse engineer CyberLock Product unless OEM first receives written authorization from CSS that unambiguously defines the scope of the authorized activities.
11.8. To afford CSS the opportunity to safeguard its Confidential Information, OEM agrees to notify CSS within ten (10) days of any decision to integrate any other third-party products or services into its offerings that reasonably compete with CyberLock Products.
12. Export Controls
OEM agrees that it shall not use, export, re-export, or divert any CyberLock Products or software in a manner contrary to United States export laws and regulations. The United States Government imposes economic sanctions or embargoes on certain countries. The list of sanctioned or embargoed countries may change periodically, but currently includes Crimea, Cuba, Iran, North Korea, Sudan, and Syria. OEM agrees that it will not furnish CyberLock Products or software to any person or entity in a country that is subject to economic sanctions or embargoes, or to nationals of such countries, without obtaining prior authorization from the United States Government. OEM further agrees that it will not furnish CyberLock Products or software to any person or entity subject to export restrictions including, but not limited to, persons or entities identified on the Denied Persons List, Entity List, or Unverified List as maintained by the United States Department of Commerce, or identified on the Specially Designated Nationals list as maintained by the United States Department of the Treasury. OEM shall not use, or provide for use, any CyberLock Product in any application or for any purpose related to nuclear technologies or chemical/biological weapons.
13. Compliance with Laws
OEM must comply with all laws and regulations that are applicable to the business that OEM transacts. OEM will, at its expense, obtain and maintain authorization from any governmental or regulatory body that may be required to deploy CyberLock Products.
14. Government Contracts
In the event that OEM elects to provide CyberLock Products or services to the United States Government, OEM does so solely at its own option and risk, and agrees not to obligate CSS as a subcontractor or otherwise to the United States Government. OEM remains solely and exclusively responsible for compliance with all statutes and regulations governing sales to the United States Government. CSS makes no representations, certifications, or warranties whatsoever with respect to the ability of its business, employees, products, services, or prices to satisfy any such statutes and regulations.
15. Taxes
Each of the parties shall be solely responsible for its own tax liabilities, including without limitation any taxes or other charges based on income, net worth, employees, or property. Unless otherwise agreed by the parties in writing, OEM is purchasing CyberLock Products under this Agreement for subsequent resale in connection with its offering of OEM Products. OEM agrees to provide CSS with a valid resale exemption certificate prior to the purchase of any CyberLock Products. In the event OEM’s purchase of CyberLock Products is not covered by an eligible exemption, CSS hereby expressly disclaims all liability for, and OEM assumes sole responsibility for payment of any taxes, duties, fees, or other costs or penalties based on or arising from OEM’s purchase or use of CyberLock Products, including any sales, use, excise, value added, service, consumption, property, or other taxes. OEM will bear any and all financial responsibility for tax, interest, and penalties resulting from OEM’s failure to comply with applicable laws and regulations.
16. Indemnification
16.1 To the extent permitted by applicable law, OEM agrees to indemnify and hold harmless CSS and Videx, Inc., the designer and manufacturer of CyberLock Products, and each of their respective officers, employees, agents, representatives, assigns, parents or subsidiaries, past and present, from and against all claims, legal or administrative proceedings, damages, taxes, liabilities, loss, cost or expenses (including, but not limited to, reasonable attorneys’ fees and court costs), judgments, settlements, and penalties arising from or relating to any of the following: (i) OEM’s breach of any certification, covenant, obligation, representation, or warranty set forth in this Agreement; (ii) any claims that OEM Products, or the distribution, sale, use, or importation of OEM Products (whether alone or in combination with CyberLock Products) violate or infringe any third party intellectual property rights; (iii) any claims, including but not limited to end-user claims, regarding OEM Products or related logos and trademarks; (iv) OEM’s development or distribution of OEM Products; (v) OEM’s failure to comply with applicable laws and regulations, or breach of any obligation under Sections 12 or 13; (vi) any commitment or representation made by OEM in breach of Section 4.2; (vii) OEM’s failure to collect, report, or pay any taxes or fees owed as a result of OEM’s purchase or use of CyberLock Products; or (viii) OEM’s use, misuse, or inability to use or integrate CyberLock Products.
16.2 CyberLock products should not be used in applications where the highest level of safety and reliability are required and failure or malfunction would result in harm or loss of life, as well as enormous damage or loss (e.g. where the property losses may exceed $100,000 USD). Such fields of applications include, without limitation, controlling emergency exits, circuitry on aircraft or heavy equipment, atomic energy, or life-critical medical equipment. CSS EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR ARISING OUT OF THE USE OF CYBERLOCK PRODUCTS IN SUCH APPLICATIONS. OEM acknowledges that CyberLock Products are not intended for use in OEM Products in which the failure or malfunction of any component could reasonably lead to death, personal injury, or severe environmental damage. OEM agrees to indemnify and hold harmless CSS and Videx, Inc., and each of their respective officers, employees, agents, representatives, assigns, parents or subsidiaries, past and present, from and against all claims, legal or administrative proceedings, damages, liabilities, loss, cost or expenses (including, but not limited to, reasonable attorneys’ fees and court costs), judgments, settlements, and penalties arising from or relating to OEM’s development, use, or offer of OEM Products (or CyberLock Products) in connection with such applications.
17. Miscellaneous
17.1. This Agreement together with any additional documents or terms attached or referenced and incorporated herein constitutes the entire understanding between the parties and supersedes all other agreements, whether written or oral, between the parties with respect to the subject matter of this Agreement. OEM states that it is not relying on any statements or representations made outside of this Agreement. No amendment to this Agreement will be effective unless it is (a) in writing and signed by both parties, or (b) enacted by CSS in accordance with Section 17.5. CSS’s failure to enforce any particular term contained herein or to exercise any right or privilege provided for herein does not constitute a waiver of CSS’s right to strictly enforce such terms or to exercise such rights or privileges. CSS reserves the right to take steps it believes reasonably necessary to verify OEM’s compliance with any term of this Agreement.
17.2. OEM is not permitted to assign any of its rights or delegate any of its obligations under this Agreement, whether by operation of contract, law, merger, or any other means, without the express prior written consent of CSS. Any purported assignment or delegation without such consent will be null and void.
17.3. All notices permitted or required under this Agreement must be delivered in writing: (a) to OEM by e-mail, by courier, by overnight mail service, by certified mail (postage prepaid and return receipt requested), or by posting in a conspicuous location on the OEM Pricing Portal; and (b) to CSS by courier, by overnight mail service, or by certified mail (postage prepaid and return receipt requested). Notices will be effective upon receipt. Except for notices posted on the OEM Pricing Portal, notices to OEM shall be sent to the same address or e-mail address that invoices are sent. Notices to CSS shall be sent to 1105 N.E. Circle Blvd., Corvallis, OR 97330, Attn: OEM Partner Agreement. Either party may change its address at any time by giving written notice to the other party.
17.4. Neither party will be liable to the other for any delay or failure to perform if that delay or failure results from a cause beyond its reasonable control.
17.5. CSS may provide OEM written notice of amendments to this Agreement. Any such amendment will become a part of this Agreement thirty (30) days from the date CSS delivered the notice, unless otherwise specified in the notice.
17.6. If any term or provision of this Agreement is held invalid or unenforceable, in whole or in part, that provision shall be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.
17.7. This Agreement is made under, and shall be governed and construed in accordance with the laws of the state of Oregon, excluding its choice-of-law provisions. All adversarial proceedings between the parties to this Agreement, whether arising out of this Agreement, out of OEM’s participation in the Program, or otherwise, shall be governed by the laws of the state of Oregon, excluding its choice-of-law provisions, and shall be decided exclusively by a court of competent jurisdiction located in Lane County, Oregon. Any such legal proceeding shall be filed exclusively in the state or federal courts located in Eugene, Lane County, Oregon, and OEM hereby irrevocably and unconditionally consents to the exclusive jurisdiction and venue of such courts. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement, or to any legal proceedings between the parties, and is hereby excluded.
CyberLock OEM Limited Hardware Warranty
Effective: January 1, 2024 – Present
This CyberLock OEM Limited Hardware Warranty (“Warranty”) gives you specific legal rights, and you may also have other rights which vary by state, province, or country. By purchasing CyberLock-branded product from CyberLock Security Solutions, Inc., through the CyberLock OEM Program, you are agreeing to be bound by the terms of the Warranty as set forth below. If you do not agree to all terms of this Warranty, do not use the CyberLock product and return it to CyberLock Security Solutions.
WARRANTY PERIOD AND EXCLUSIVE REMEDY
CyberLock Security Solutions (“CSS”) offers a TWO (2) YEAR warranty (from date of original purchase) against defects in material and workmanship for the following products: CyberLock cylinders, CyberLock padlocks, and CyberKey smart keys. Except as excluded below, CSS offers a ONE (1) YEAR warranty (from date of original purchase) against defects in material and workmanship for all other CyberLock access control system hardware, including but not limited to Flex System, FlashLock, CyberLock Blue, and CyberLock NFC products, charging devices, communicators, vaults, and lock boxes. In the event this Warranty is breached and a valid claim is submitted during the applicable warranty period, CSS will, at its option, (a) repair the product, or (b) replace the product with the same model (or with a CyberLock product that has comparable functionality).
EXCLUSIONS
This Warranty does not apply to any third-party hardware products, even if packaged or sold with CyberLock products. For example, this Warranty does not apply to the SE-200 or SVR-CAW-500/525 servers and does not modify or alter any warranty terms that the manufacturers of such hardware may offer or provide.
This Warranty does not apply to software. Refer to the licensing agreement(s) accompanying the software for details of your rights with respect to its use.
This Warranty does not cover damage or failures arising from or relating to: (a) use with third-party products or services not supplied or authorized by CSS; (b) use with access control software or mobile applications not supplied by CSS; (c) failure to follow instructions relating to the CyberLock product’s installation, maintenance, disassembly, or use; (d) criminal tampering, vandalism, or alteration of the product; or (e) application of solvents, lubricants, or other chemical compounds in a manner inconsistent with the CyberLock Cleaning Instructions.
This Warranty does not cover exterior finish (e.g. color change due to weather, salt, or chemicals). Only the weather-resistant CyberLock cylinders are warranted for use in padlocks. Periodic cleaning of the lock face and key pins is recommended, particularly when installed or used in outdoor or dirty environments.
CSS does not represent that CyberLock products may not be compromised, or that the products will prevent loss or damage resulting from burglary or unauthorized access. When properly installed and maintained, CyberLock products are designed to reduce the risk of unauthorized access. CyberLock products should not be used in applications where the highest levels of safety and reliability are required, for example where failure or malfunction of the product may result in bodily harm, loss of life, or immense damage or loss. Such applications include, but are not limited to, controlling emergency exits, circuitry on aircraft or heavy equipment, atomic energy generation, life-critical medical equipment, or any application where property losses may exceed $10,000. CSS EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM THE USE OF CYBERLOCK PRODUCTS IN SUCH APPLICATIONS. You agree to indemnify, defend, and hold CSS and its licensors harmless from and against any and all actions, claims, damages, liabilities, award, costs, and expenses, including legal expenses, arising from or relating to your use, or sale for use in such applications. CSS is not liable for the cost of labor to remove or replace locks or other hardware, or for the cost of transportation to or from the job site.
WARRANTY LIMITATIONS AND LIMITATION ON LIABILITY
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, THIS WARRANTY AND THE REMEDIES SET FORTH ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES, AND CONDITIONS. CSS LIABILITY IS LIMITED TO THE PURCHASE PRICE OF THE PRODUCT. CSS IS NOT LIABLE FOR PERSONAL INJURY, OR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES OF ANY NATURE ARISING FROM OR RELATING TO THIS WARRANTY OR YOUR USE OF OR INABILITY TO USE CYBERLOCK PRODUCTS, WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, OR ANY OTHER LEGAL THEORY, INCLUDING BUT NOT LIMITED TO DAMAGES RELATING TO LOSS OF USE, LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS, LOSS OF REPUTATION, OR LOSS OF DATA. ALL STATUTORY AND IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED. TO THE EXTENT SUCH WARRANTIES CANNOT BE DISCLAIMED UNDER APPLICABLE LAW, CSS LIMITS THE DURATION AND REMEDIES OF SUCH WARRANTIES TO THE DURATION OF THIS EXPRESS WARRANTY AND, AT CSS’S OPTION, THE REPAIR OR REPLACEMENT SERVICES EXPRESSLY PROVIDED FOR HEREIN. SOME STATES DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY. ANY ACTION FOR BREACH OF WARRANTY MUST BE BROUGHT NO LATER THAN SIX MONTHS AFTER EXPIRATION OF THE APPLICABLE WARRANTY PERIOD.
GOVERNING LAW
This Warranty shall be governed and construed in accordance with the laws of the state of Oregon, excluding its choice-of-law provisions. All actions and adversarial proceedings arising from or related to this Warranty, or to your use of or inability to use CyberLock products, shall be decided exclusively by a court of competent jurisdiction located in Lane County, Oregon. Any such legal proceeding shall be filed exclusively in the state or federal courts located in Eugene, Lane County, Oregon, and you hereby irrevocably and unconditionally consent to the exclusive jurisdiction and venue of such courts.
REPAIR/REPLACEMENT FEES FOR CYBERLOCK HARDWARE
During the applicable warranty period, repair or replacement is done at no cost. After expiration of the warranty period, CSS may offer repair or replacement of certain products subject to payment of a repair fee. Please contact CSS for the current repair fees.
RETURN PROCEDURE
The following procedure should be followed when returning items to CSS for repair or upgrade.
- Contact the CyberLock Technical Support Department to discuss the equipment problem (phone 541-738-5500, fax 541-738-5501, or email support@cyberlock.com). This step is important because, in many cases, the problem is minor and can be corrected over the phone. If the problem is not resolved, a Service Order number (SVO#) will be issued for returning the product. The serial number of the non-working product must be provided prior to the repair to qualify for warranty. The serial number may be given to Technical Support or included with return of the product.
- CyberLock cylinders sent in for repair or upgrade must be reset to qualify for warranty repair.
- Include the following items with the product for repair: The serial number of the non-working hardware, the assigned SVO#, your name, company name, return address, telephone number, and description of the problem. If the repair is under warranty, include the CSS invoice as proof of original purchase date. If it is a non-warranty repair, also include your method of payment for the repair fee and return shipping charges. Payment is accepted via company check or money order payable in US dollars, Visa, MasterCard, Discover, American Express, ACH electronic transfer, or bank wire. If you have credit terms with CSS, include your purchase order number and ‘bill to’ and ‘ship to’ instructions.
- Place the SVO# you received from the Technical Support Department on the outside of the package. Ship the package to CyberLock Security Solutions, Inc., 1105 N.E. Circle Blvd., Corvallis, OR 97330, U.S.A., with the shipping charges prepaid.
- When the product is received, it is logged into the Service Department, checked for problems, repaired or exchanged with a remanufactured unit, and tested.
- Products are returned to you by the same method of transportation used to deliver the product to CSS, unless another method is specified. If the repair is under warranty, CSS will pay the return shipping charge; if it is a non-warranty repair, you are responsible for the return shipping charge.