OmniAir Connected Vehicle Product Certification Agreement V2X
OMNIAIR CONNECTED VEHICLE PRODUCT CERTIFICATION AGREEMENT
This OmniAir Connected Vehicle Product Certification Agreement (the “Agreement”) is entered into as of (the “Effective Date”), by and between OmniAir Consortium, Inc., is a 501(c)(6) nonprofit trade association (“OmniAir”), with its principal office at 201 N. Union Street, Suite 110, Alexandria, VA 22314, and (“Applicant”), with its principal office located at
.
WHEREAS, OmniAir is the owner of a family of conformity assessment certification programs for Intelligent Transportation System (“ITS”) industry products. In addition, OmniAir has developed certain certification program policies and procedures for all OmniAir owned or appointed certification programs with the goal of providing competent, impartial and consistent certification. Products that are awarded certification are permitted to display the OmniAir Certified Mark in accordance with the license and OmniAir Certification Trademark Production and Usage Guidelines, and so as long OmniAir membership and conformance is maintained;
WHEREAS, the OmniAir Connected Vehicle Conformity Assessment (CVCA) Program establishes the policy and process guidelines for an independently operated, third-party certification program verifying conformance and interoperability of connected vehicle technology products to industry defined, standards-based requirements. The OmniAir CVCA is a voluntary conformity assessment program that verifies a connected vehicle environment product(s) has met industry consensus protocols, and minimum performance and testing interface requirements for V2V, V2I and V2X communications;
WHEREAS, Applicant is a developer, manufacturer and/or vendor of connected vehicle environment product(s) and desires to obtain certification of its product(s) pursuant to OmniAir’s CVCA Program. The candidate product(s) are listed below:
Product(s):
Product Name:
Product Description:
WHEREAS, Applicant has submitted its Request for Connected Vehicle Product Certification, which Application has been accepted and approved by OmniAir;
WHEREAS, Applicant has paid the required Certification Fee(s) to OmniAir; and
WHEREAS, the parties desire to set forth herein the terms and conditions under which said services shall be furnished.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained and for other valuable consideration, the receipt of which is hereby acknowledged, and intending to be legally bound, the parties agree as follows:
Section 1 – Definitions
Applicant – The legal entity or individual who applies for the certification of a particular product(s), such as a device, test tool, test equipment, test case software or other ITS-related device or equipment. The Applicant is contractually and financially responsible for the cost of the conformity assessment evaluation process. An Applicant must be a member in good standing with the OmniAir Consortium and maintain membership to display the OmniAir Certified Mark on approved products.
Authorized Test Laboratory – An independent entity or entities authorized by OmniAir to execute testing for applicants for a specific certification program. The Authorized Test Laboratory is listed according to the specific certification programs for which it has been evaluated and found to meet all OmniAir authorization requirements.
Certification Agreement – This Agreement: A legally binding and enforceable agreement between the Applicant and OmniAir regarding party responsibilities, legal considerations and certification services and activities.
Certification or Conformity Assessment Program – The foundational governance, procedures and management to conduct conformity assessment of a product to standards based requirements for the purpose of certification.
Certification Body – A legal entity or defined team within a legal entity which functions as a third-party conformity assessment body and operates specific certification programs.
Certification Requirement – Also known as conformance requirements. Specified requirements established by the certification body or certification program that shall be fulfilled by the Applicant as a condition for establishing or maintaining certification. These may also include product requirements.
Certification Staff – Collective term for OmniAir staff or staff under OmniAir organizational control or under contract who directly participate in OmniAir certification activities. This includes executive management, Technical Director, inspection and administrative support personnel.
Conformance Requirement –Specified requirements established by the certification body or certification program that shall be fulfilled by the Applicant as a condition for establishing or maintaining certification. These may also include product requirements directly applicable to a product or its implementation features.
Conformity Assessment – The activities determining a device’s compliance with defined, relevant conformance requirements.
Device – An ITS wireless radio product operating in the frequency range 5.850 – 5.925 GHz (5.9 GHz band), or other applicable frequencies, enabling V2V, V2I or V2X communications.
Evaluation – May include activities such as initial application information gathering, development of a test plan, the performance of testing, the witnessing of testing, and all other activities associated with evaluating compliance of the product(s) with the applicable certification and conformance requirements, including any evaluation activities performed prior to the application for certification.
Integrated Device – A device containing a certified module.
Module – A device requiring integration into a final sellable product. It is optional but recommended that the module obtain separate certification.
Product –This item can be a radio device, integrated device, module, re-labeled device or variant, test equipment, test tool, test case software or other ITS-related device or equipment.
Re-Labeled or Re-branded Device – A device that is identical to a currently certified device but has a different vendor name and model name/number.
Certification Program Owner – The organization or individual responsible for the developing and maintaining a specific certification program.
Surveillance Personnel – Competent persons who perform the surveillance procedures as defined by the certification body, OmniAir and/or the individual program owner.
Technical Director - OmniAir staff position whose responsibilities include day-to-day operation management of OmniAir certification programs, oversight of applications (laboratories, test equipment and products), audits, authorization and continued fulfillment of contractual obligations, interpretation of certification program requirements, review of applicant provided information, deliverance a certification requirement fulfillment decision, issuance of certification letters and OmniAir Certified Mark usage authorization.
Variant – A product from the same vendor that is similar to another product (parent) previously submitted for certification. The variant has a unique model name/number.
Section 2 – Applicant’s Representations, Warranties and Obligations
2.1 – Applicant represents and warrants that as of the Effective Date it satisfies and complies with the requirements, procedures, processes and guidelines set forth in the current versions of each of the OmniAir Certification Program Policies Manual and OmniAir Connected Vehicle Conformity Assessment Program.
2.2 – Applicant represents and warrants that all information provided in its Connected Vehicle Product Certification Application is true, complete and accurate as of the time of its submittal and that it has paid the required application fees to OmniAir.
2.3 – Applicant represents and warrants that the signatory of this Agreement is authorized to bind the Applicant as set forth in this Agreement.
2.4 – Applicant agrees that it will comply with the Technical Director’s reasonable requests for additional information or clarification regarding the Applicant’s product(s) submitted for certification or other information necessary for purposes of certification as contemplated by this Agreement.
2.5 – Applicant acknowledges and agrees that OmniAir may update, amend and/or establish new or additional requirements for certification pursuant to the OmniAir CVCA Program at any time in its sole discretion. OmniAir will post all updates, amendments or additional requirements on its website, and shall notify Applicant when any updated, amended, new or additional requirements shall become effective, at which time the same shall be binding upon Applicant unless this Agreement has been terminated.
2.6 – Applicant acknowledges and agrees that it is responsible for ensuring that any updates, revisions or other changes to a certified product(s), or to a product(s) then undergoing certification testing, are provided to OmniAir and/or the relevant OmniAir Test Laboratory as soon as such updates, revisions or other changes are effective.
2.7 – Applicant acknowledges and agrees that the grant of certification of a product(s) does not entitle the Applicant to publicly assert a claim of certification under the OmniAir CVCA Program or to display any OmniAir certification trademark or logo. Permitted usage is subject to the terms of this Agreement, the OmniAir CVCA Program documents and the OmniAir Certification Trademark Production and Usage Guidelines, including post-certification surveillance and product sampling as set forth in the Certification Program documents.
2.8 – Applicant is or has applied to be a member of OmniAir and will remain a member in good standing during all times it seeks certification and thereafter publicly asserts a claim of certification under the OmniAir CVCA Program and display any OmniAir Certified trademark or logo.
2.9 – Applicant acknowledges and agrees that it shall ensure that all manufactured units of its certified product(s) with hardware / software versions and continue to meet the applicable certification requirements and would otherwise pass regression certification testing as it was defined when the original product(s) was certified.
2.10 – Applicant acknowledges and agrees that the OmniAir CVCA Program does not include testing or certification for product safety, FIPS, FCC regulatory or equipment approval, environmental, durability or reliability testing, cellular conformance or other wireless consortia certifications.
Section 3 – Confidentiality
3.1 -- The parties each hereby acknowledge that either may, from time to time in connection with the Certification Program, this Agreement and the Connected Vehicle Product Certification Application, disclose to the other certain commercially valuable, proprietary and confidential information and trade secrets with respect to its business, including without limitation information which may relate to its proprietary products, services, technology, processes, drawings, specifications, programs, models, financial information and projections, formulae, data, know-how, developments, designs, improvements, software programs, products, marketing plans and strategies, customer and supplier lists and/or other valuable business information and opportunities (collectively, “Proprietary Information”). The party disclosing Proprietary Information to the other in connection with the Certification Program is referred to as the “Disclosing Party”, and the party receiving such information from the Disclosing Party is referred to as the “Receiving Party.” Although it is preferred that the parties label all disclosed Proprietary Information as such, the status of disclosed information as Proprietary Information may be reasonably inferred by the Receiving Party based on the nature, substance and/or format of the disclosed information.
3.2 -- Each party, acting as the Receiving Party, agrees to keep strictly confidential all Proprietary Information received by it from the Disclosing Party and to use such Proprietary Information solely for the purpose of performing its obligations under this Agreement and in connection with the Certification Program (the “Permitted Purpose”). Each Receiving Party agrees that any and all Proprietary Information of the Disclosing Party is and shall remain the proprietary and confidential information and property of the Disclosing Party. Without limiting the foregoing, without the prior written consent of the Disclosing Party, a Receiving Party may not (a) use any of the Proprietary Information of the Disclosing Party for any purpose other than the Permitted Purpose, (b) use any of the Proprietary Information of the Disclosing Party with, or disclose any such Proprietary Information to, any third party, except as set forth in this Agreement, or (c) use any of the Proprietary Information of the Disclosing Party for the Receiving Party’s internal use or product development purposes. The Receiving Party may disclose the Proprietary Information or portions thereof to those of its employees and agents (collectively, ‘Representatives”) who (a) need to know such information for the Permitted Purpose and (b) have agreed to be bound by the terms of this Agreement. The Receiving Party shall be responsible for ensuring that its Representatives shall keep such information confidential and shall not disclose or divulge the same to any unauthorized person or entity and shall assume full responsibility for any breach of said undertaking.
3.3 -- For the purpose of protecting Proprietary Information received from the Disclosing Party hereunder, the Receiving Party will use all reasonable efforts to protect the confidentiality thereof, including, without limitation, efforts commensurate with those it employs for the protection of its own confidential and proprietary information. All Proprietary Information transmitted by the Disclosing Party shall remain the sole property of the Disclosing Party and under no circumstances whatsoever shall the Receiving Party dispute such sole ownership nor assert any rights to license Proprietary Information or any derivatives thereof.
3.4 -- A Receiving Party’s obligations hereunder shall not apply to any portion of a Disclosing Party’s Proprietary Information: (a) of which the Receiving Party presently has knowledge or which is in the Receiving Party’s possession on the date hereof and of which it did not learn through its contact with the Disclosing Party previous to the date hereof; (b) which is presently publicly available or a matter of public knowledge generally or becomes publicly known through no wrongful act of the Receiving Party; (c) which is lawfully received by the Receiving Party from a third party that is not under an non-disclosure obligation to the Disclosing Party; or (d) disclosure of which is necessary to comply with law or the valid order or requirement of a governmental agency or court of competent jurisdiction. If a Receiving Party or any of its Representatives is requested or required by deposition, interrogatory, request for information or documents, subpoena, civil or criminal investigative demand or similar process including regulatory inquiries, or otherwise to disclose any Proprietary Information of the Disclosing Party, the Receiving Party with such obligation (“Obligated Party”) will notify the Disclosing Party promptly so that the Disclosing Party may seek a protective order or other appropriate remedy. If such protective order or other remedy is not obtained the Obligated Party may disclose to the requesting tribunal or other person only that portion of the Proprietary Information of the Disclosing Party which the Obligated Party is legally required to disclose, and the Obligated Party shall notify the Disclosing Party not later than the time of such disclosure of the nature and extent of such disclosure.
3.5 -- Proprietary information that is included in public filings made to governmental organizations or in a governmental proceeding shall not be subject to this Section 3 and will be considered to be in the public domain, unless such Proprietary Information was submitted under cover of a request for confidential treatment or is the subject of an agreement, protective order or other legal instrument granting such confidential treatment.
3.6 – Proprietary product information submitted by Applicant and/or OmniAir to an Authorized Test Laboratory for certification, and related communications, files and records, will be considered confidential and protected from disclosure by OmniAir in a manner consistent with this Section 3.
3.7 -- Each Receiving Party acknowledges and agrees that (a) a Disclosing Party shall not have an adequate remedy in the event that the Receiving Party breaches this Agreement and that a Disclosing Party will suffer irreparable damage and injury in such event; and (b) a Disclosing Party, in addition to any other available rights and remedies, shall be entitled to an injunction restricting the Receiving Party from committing or continuing any violation of this Agreement.
3.8 -- Upon termination of this Agreement or for any reason whatsoever, and in any event upon the request of the Disclosing Party at any time, the Receiving Party will, promptly upon written request by the Disclosing Party, deliver to the Disclosing Party all of its Proprietary Information furnished to the Receiving Party which is in written or electronically-readable form, including all copies or extracts thereof or based thereon in its possession or in the possession of any of its Representatives.
3.9 -- These obligations of confidentiality shall survive for a period of three (3) years from termination of this Agreement.
Section 4 – Notice
All notices or other relevant communications required under this Agreement shall be in writing, including electronic, and shall be delivered to the following points of contact for each party:
OmniAir Consortium, Inc.
Applicant
Name: Jason M. Conley
Name:
Title: Executive Director
Title:
Address:
201 N. Union Street, Suite 110, Suite 110, Alexandria, VA 22314
Phone: (571) 489-4499
Phone:
Email: [email protected]
Email:
Section 5 – Public Statements
Neither party shall, without the prior written consent of the other party, use the other party’s name, trademark, service mark or logo in connection with any marketing, advertising, public announcements, or in any other manner which may cause harm to the other party’s reputation and/or business. Notwithstanding the foregoing, Applicant agrees that OmniAir may list Applicant’s certified product(s) on its webpage, “Certified Product Catalog) (https://omniair.org/certified-products/). Such listing will identify the Applicant, the Applicant’s logo and link to its website, name of the certified device, and device category (ies). Applicant acknowledges that OmniAir may receive informal inquires (via phone or email) requesting confirmation of certified devices. Applicant further agrees that OmniAir may respond to such informal inquiries by providing confirming information consistent with the device description available on the Certified Product Catalog.
Subject to OmniAir’s prior written approval, Applicant may publicly announce that it has entered into this Agreement with OmniAir. Unless otherwise agreed in writing by the parties, the parties shall not make any other public statements regarding this Agreement. Neither party shall disclose, advertise, or publish the terms and conditions of this Agreement without the prior written consent of the other party.
Section 6 – Independent Contractor; Non-Exclusivity of Relationship
6.1 – For purposes of this Agreement, OmniAir is and shall remain an independent contractor in the performance of the contemplated certification services and nothing in this Agreement shall be construed to be inconsistent with OmniAir’s status as an independent contractor. At no time shall either party shall hold itself out as an agent, subsidiary, or affiliate of the other party for any purpose, including reporting to any governmental authority, and shall have no authority to bind the other party to any obligation.
6.2 – Applicant acknowledges that OmniAir intends to enter into agreements similar to this Agreement with other Applicants for the purpose of certifying their product(s).
Section 7 – OmniAir Authorized Test Laboratory Agreement and Fees
Applicant acknowledges that this Agreement contemplates that Applicant will enter into a separate contract with an OmniAir Authorized Test Laboratory for purposes of conducting the contemplated certification testing. Such OmniAir Authorized Test Laboratory may require Applicant to pay testing fees directly to the OmniAir Authorized Test Laboratory. Such fees paid to the Authorized Test Laboratory are separate and distinct from the required application fees to be paid by Applicant to OmniAir.
Section 8 – License to Use and Display OmniAir Certified Trademarks and Logos
Applicant’s product(s) that are awarded certification pursuant to this Agreement are hereby provided a revocable, non-perpetual, non-exclusive, and non-transferable license to display the OmniAir Certified trademarks and logos on the certificated product(s)and in associated materials (instructions, brochures, technical summaries, etc.) regarding such certified product(s). This license is valid only for the term of this Agreement.
The display of the OmniAir Certified trademarks and logos must be done so in a manner consistent at all times with the requirements set forth in the OmniAir Certification Trademark Production and Usage Guidelines and Applicant must remain a member in good standing of OmniAir at all times the OmniAir Certified trademarks and logos are displayed. Applicant’s failure to comply with the requirements set forth in the OmniAir Certification Trademark Production and Usage Guidelines, or to maintain itself as an OmniAir member in good standing, shall result in the immediate termination of this Agreement and this license as set forth in Section 11 of this Agreement.
Section 9 – Intellectual Property
9.1 – Each party exclusively owns all rights to its intellectual property whether created before or after the Effective Date of this Agreement and whether or not associated with any agreement between the parties.
9.2 -- The results and completion of the certification services contemplated by this Agreement shall be evidenced by the issuance to the Applicant of a written report by Test Laboratory (“Reports”). Reports are issued solely by Test Laboratory, intended for the exclusive use of the Applicant and OmniAir, their affiliates and subsidiaries, and, as may be required, government or regulatory bodies. The Reports generated by the Test Laboratory for submitted Applicant products regarding the results from the conformance testing and the data contained therein is the property of the Applicant. Such Reports shall be delivered to OmniAir and Applicant upon completion of Test Laboratory’s Services as contemplated by this Agreement for each product submitted to Test Laboratory for conformance testing. It is understood that any Report produced as contemplated by this Agreement was produced entirely under a special order and commission of OmniAir and the relevant Applicant.
Section 10 –Indemnification; Disclaimer of Warranties
10.1 – OmniAir disclaims any and all liability for any failure of a certified product belonging to Applicant to perform in the manner as designed and intended by Applicant.
10.2 – Applicant agrees that it shall indemnify, defend and hold harmless each of OmniAir, its subsidiaries, each OmniAir member organization, and their respective directors, officers, employees and agents, successors and assigns (collectively, "Indemnified Parties") from all claims, losses, liabilities, damages, suits, actions, government procedures, taxes, penalties, or other costs brought against any Indemnified Party arising out of Applicant’s manufacture, use, sale or supply of any certified product
10.3 -- EXCEPT FOR DAMAGES CAUSED BY WILLFUL MISCONDUCT OF A PARTY, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, HOWEVER CAUSED, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY DOES NOT APPLY TO INDEMNIFICATION OWED TO THE OTHER PARTY FOR ANY THIRD-PARTY CLAIMS.
10.4 -- In recognition of the fact that Test Laboratory tests only a sample of a product, OmniAir makes no representation that the results set forth in the Test Laboratory’s Reports are indicative or representative of the quality or characteristics of the lot from which a sample product has been taken or of the product in general. OmniAir does not, therefore, take the place or undertake the obligations and responsibilities of the Applicant or any designer, manufacturer, importer, agent, buyer, distributor or transportation or shipping company, and OmniAir disclaims any and all liability in such capacities. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY CONTAINED HEREIN OR IN ANY REPORT OR OTHER INSTRUMENT, NO WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, IS MADE BY OMNIAIR FOR THE CONTEMPLATED CERTIFICATION SERVICES OR FOR ANY CERTIFIED PRODUCT SOLD BY THE APPLICANT.
Section 11 – Term and Termination
11.1 -- This Agreement shall commence on the Effective Date and shall continue for a period ending upon termination in accordance with this Section 11 (the “Term”).
11.2 – This Agreement may terminate by a written mutual agreement of the parties.
11.3 -- In addition, either party may terminate this Agreement if (i) subject to the following sentence of this paragraph, the other party commits a breach of any material provision of this Agreement (which, for purposes of termination by OmniAir, shall include without limitation, any failure of the Applicant to comply with the OmniAir Certification Trademark Production and Usage Guidelines or a failure to maintain its membership in OmniAir in good standing), or (ii) the other party becomes insolvent or files a voluntary or involuntary proceeding in bankruptcy, or has a receiver appointed to administer its assets, or if the other party becomes subject to a dissolution, liquidation or other winding-up of its business. Except as otherwise provided elsewhere in this Agreement, in the event a party desires to terminate this Agreement in connection with any curable breach by the other party, the non-breaching party shall give the breaching party written notice of the breach and, in the event the breach is not cured within 30 days, or in the event the breach is not of a nature that can be cured, then the non-breaching party may terminate this Agreement immediately upon written notice thereof.
11.4 -- Upon termination for any reason, Applicant shall immediately cease publicly asserting a claim of certification under the OmniAir CVCA Program or to display any and all OmniAir certification trademarks or logos. A failure by Applicant to comply with this requirement would cause OmniAir to suffer irreparable damages and injury for which monetary damages may not be sufficient; accordingly, in addition to any other available rights and remedies, OmniAir shall be entitled to an injunction or other equitable relief.
11.5 – Notwithstanding the termination of this Agreement for any reason, the parties’ respective rights and obligations pursuant to Sections 1, 3, 4, 5, 6, 9, 10, 11.4, 11.5, and 12 of this Agreement shall survive.
Section 12 – General
12.1 -- This Agreement shall be governed by the laws of the Commonwealth of Virginia without reference to its choice-of-law principles. Each of the parties hereto irrevocably consents to the exclusive jurisdiction of the federal or state courts located within the Commonwealth of Virginia with competent jurisdiction in connection with any matter based upon or arising out of this Agreement or the matters contemplated herein.
12.2 – Applicant may only assign this Agreement, including the license described in Section 8, in connection with a sale or transfer of all its rights to the certified product(s) and associated Intellectual Property. Applicant to provide OmniAir with no less than 30 days prior notice to any such sale or transfer.
12.3 – This Agreement sets forth the entire understanding of the parties as to its subject matter and may not be modified except by further written agreement signed by both parties.
12.4-- Should any provision of this Agreement be held to be void or unenforceable, the remaining provisions shall remain in full force and effect, to be read and construed as if the void or unenforceable provisions were originally deleted.
12.5 --If this Agreement is translated into any other language for the convenience of either party, the text of the English version shall control and shall be executed by the parties.
* * *
IN WITNESS WHEREOF, the duly authorized representatives of the parties have executed this Agreement on behalf of the parties as of the Effective Date written above.
Applicant:
OmniAir Consortium, Inc.:
(Version 2.0, July 2021)
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