TERMS AND CONDITIONS OF SALE
1. DEFINITIONS
The following terms used in these Terms and Conditions of Sale shall have the following meanings:
“Buyer” means the company identified on the face of the Purchase Order.
“Confidential Information” means any information not generally known to the public and proprietary to the disclosing party and includes, without limitation, trade secrets, inventions, and information pertaining to research, development, purchasing, marketing, selling, accounting, licensing, business systems, business techniques, customer lists, prospective customer lists, price lists, business strategies and plans, pending patentable materials and/or designs, design documentation, documentation of meetings, tests and/or test standards, or manuals whether in document, electronic, computer, or other form. For example, Confidential Information may be contained in the disclosing party’s customer lists, prospective customer lists, the particular needs and requirements of customers, the particular needs and requirements of prospective customers, and the identity of customers or prospective customers. Information shall be treated as Confidential Information irrespective of its source and any information which is labeled or marked as being “confidential” or “trade secret” shall be presumed to be Confidential Information. The definition of “Confidential Information” as set forth in this definition is not intended to be complete. From time to time during performance of any applicable Purchase Order or Purchase Agreement, a party may gain access to other information not generally known to the public and proprietary to the other party concerning the party’s businesses that is of commercial value to the party, which information shall be included in this definition, even though not specifically listed above. The definition of Confidential Information applies to any form in which the subject information, trade secrets, or data may appear, whether written, oral, or any other form of recording or storage.
“Force Majeure” means an event beyond the reasonable control of the non- performing party and may include but is not limited to: (a) delays or refusals to grant an export license or the suspension or revocation thereof; (b) any other acts of any government that would limit a party’s ability to perform under the Agreement; (c) fires, earthquakes, floods, tropical storms, hurricanes, tornadoes, severe weather conditions, or any other acts of God; (d) quarantines or regional medical crises; (e) shortages or inability to obtain materials or components; (f) labor strikes or lockouts; and (g) riots, strife, insurrection, civil disobedience, landowner disturbances, armed conflict, terrorism, or war, declared or not (or impending threat of any of the foregoing, if such threat might reasonably be expected to cause injury to people or property). If a Force Majeure event causes a delay, then the date of performance will be extended by the period of time that the non-performing party is actually delayed, or for any other period as the parties may agree in writing.
“Licensed Software” means software, including all related updates, changes, revisions, and documentation, if any, that Buyer is entitled to use under the terms of any applicable Purchase Order or Purchase Agreement and which is not subject to a separate software license between the parties.
“Nonconformance” means failure to operate due to defects in workmanship or material; and for the avoidance of doubt, normal wear and tear and the need for regular overhaul and periodic maintenance do not constitute a Nonconformance.
“NRE” means non-recurring engineering.
“Product” means any applicable aircraft, sensors, parts, or components, end items, line replaceable units, and/or components thereof, including those returned for exchange, other tangible goods, and intangible items, including services or Services, software, or intellectual property that can be used, stored, evaluated, or consumed; provided that Product do not include any Special Tooling.
“Purchase Agreement” has the meaning set forth in Article 3 titled “PURCHASE ORDERS” of these Terms and Conditions of Sale.
“Purchase Order” has the meaning set forth in Article 2 titled “APPLICABILITY” of these Terms and Conditions of Sale.
“Purpose” has the meaning set forth in Article 18 titled “CONFIDENTIALITY” of these Terms and Conditions of Sale.
“Rules” has the meaning set forth in Article 15 titled “DISPUTES” of these Terms and Conditions of Sale.
“Seller” means Defense Systems Redeployment Group LLC.
“Separate Agreement” means any agreement, other than a Purchase Agreement, between Buyer and Seller in respect of the Products and Services, including any agreement expressly providing precedence over (i) any other applicable Separate Agreement or any applicable Purchase Order or Purchase Agreement, or (ii) any negotiated scope of work with respect to any Products and Services;
“Services” means any applicable NRE, costs and effort to support a defined Buyer requirement, and/or other intangible commercial support provided by the Seller to Buyer where the Buyer does receive or obtain, and the Seller does not produce, anything tangible.
“Special Tooling” means jigs, dies, fixtures, molds, patterns, special taps, special gages, special test equipment, other special equipment and manufacturing aids, replacements items, and other similar items, created or used by Seller in the performance of its obligations with respect to Products and Services under any applicable Purchase Order or Purchase Agreement.
“U.S.” means the United States of America.
2. APPLICABILITY
Any purchase order placed by Buyer to purchase Products and Services from Seller (“Purchase Order”) are governed by these Terms and Conditions of Sale, whether or not these Terms and Conditions of Sale are referenced in the Purchase Order.
3. PURCHASE ORDERS
Purchase Orders are non-cancelable and will specify : (a) Purchase Order number, (b) Seller's Product part number or quotation number, as applicable, including a general description of the Product; (c) requested delivery dates; (d) applicable price; (e) quantity; (f) location to which the Product is to be shipped; and (g) location to which invoices will be sent for payment. Purchase Orders are subject to acceptance by Seller (such accepted Purchase Order, a “Purchase Agreement”). Seller's acknowledgment of receipt of any Purchase Order will not constitute acceptance of such Purchase Order and formation of a Purchase Agreement.
4. DELIVERY
Delivery terms are EX Works (EXW Incoterms 2020), Seller’s facility or other facility specified by Seller, as applicable, except that Seller is responsible for obtaining the export license. Buyer is responsible for all duties, taxes, and other charges payable upon export. Seller will schedule delivery in accordance with its standard lead time unless the Purchase Order, Purchase Agreement, or Separate Agreement states a later delivery date. If Seller prepays charges for transportation or any special routing, packing, labelling, handling, or insurance requested by Buyer, Buyer will reimburse Seller upon receipt of an invoice for those charges. Title will pass to Buyer upon delivery.
5. ACCEPTANCE - PRODUCT
Products are presumed accepted unless Seller receives written notice of rejection from Buyer explaining the basis for rejection within 20 calendar days after delivery. Buyer must disposition rejected Product to Seller in accordance with Seller’s written instructions. Seller will have a reasonable opportunity to repair or replace rejected Products, at its option. Subject to the terms of Article 23 titled “TAXES AND DUTIES” of these Terms and Conditions of Sale, Seller assumes shipping costs in an amount not to exceed actual reasonable direct freight charges to Seller's designated facility for the return of properly rejected Products. Buyer will provide copies of freight invoices to Seller upon request. Following initial delivery, the party initiating shipment will bear the risk of loss or damage to Products in transit. If Seller reasonably determines that rejection was improper, Buyer will be responsible for all expenses caused by the improper rejection.
6. ACCEPTANCE - SERVICES
Buyer will inspect Services within 10 calendar days after delivery from Seller or completion of Services. Services will be presumed accepted unless Seller receives written notice of rejection explaining the basis for rejection within that time. Seller, at Seller's option, will be afforded a reasonable opportunity to repair, replace, or otherwise remedy rejected Services, provided the reason for rejection is due solely to the fault of Seller. Buyer further agrees that partial or beneficial use of the work by Buyer prior to final inspection and acceptance will constitute acceptance of the work under the applicable Purchase Order.
7. CHANGES
Buyer may make change to the scope of an Purchase Order subject to written acceptance by Seller. Seller will inform Buyer if the change causes a price modification or schedule adjustment. The changes will be effective and Seller may begin performance upon the parties’ authorized signature of the change order.
8. CHANGES – PRODUCT
Seller may, without notice to Buyer, incorporate changes to Products that do not alter form, fit, or function. Seller may, at its sole discretion, also make such changes to Products previously delivered to Buyer.
9. PRICES
Prices are stated in U.S. currency and are effective for the applicable Purchase Order. Seller reserves the right to correct any invoices or errors in Purchase Order prices. This Article 9 will survive expiration or any termination of the applicable Purchase Order.
10. PAYMENTS
Payment must be received by Seller 30 calendar days from date of invoice unless otherwise agreed by the parties in any applicable Purchase Agreement or Separate Agreement. Payments must be made in U.S. currency. Seller may re-evaluate Buyer's credit standing at any time. If Seller determines in its sole discretion that Buyer fails to qualify for such payment terms at any time, then Seller may without notice to Buyer modify or withdraw credit terms including, but not limited to, requiring advance payment, guarantees, or other security.
If Buyer is delinquent in its payment obligation to Seller, Seller may upon written notice to Buyer withhold future shipments until all delinquent amounts and late interest, if any, are paid, and in addition to any other rights or remedies in any applicable Purchase Order or Purchase Agreement, Seller may at its option:
a) deliver future shipments on a cash with order or cash in advance basis;
b) withhold performance under any applicable Purchase Order or Purchase Agreement until all delinquent amounts and late interest, if any, are paid;
c) declare Buyer's performance in breach and terminate any applicable Purchase Order or Purchase Agreement if payment is not received within 3 days of written notice to Buyer;
d) charge interest on delinquent amounts at a rate of 1.5% per month or the maximum rate permitted by law, if lower, for each month or part thereof;
e) suspend any performance guarantees or penalties for any Seller non-performance for as long as the Buyer remains in a delinquent payment status;
f) if Buyer is delinquent on a payment schedule, accelerate all remaining payments and declare the total outstanding balance then due and owing;
g) charge storage or inventory carrying fees on Products;
h) recover all costs of collection including, without limitation, reasonable attorneys' fees;
i) repossess Products for which payment has not been made; or
j) combine any of the above rights and remedies as may be permitted by applicable law.
The above remedies are in addition to all other remedies available at law or in equity. This Article 10 will survive expiration or any termination of the applicable Purchase Order or Purchase Agreement.
11. SETOFF
Buyer will not set off or recoup invoiced amounts or any portion thereof against sums that are due or may become due from Seller, its parent, affiliates, subsidiaries, divisions, or units.
12. WARRANTY
Unless otherwise agreed by the parties in any Purchase Agreement or Separate Agreement, Seller warrants that at time of shipment to Buyer the Products will comply with applicable Product documentation and specifications and for a period of 12 months after shipment of the Products will be free from defects in workmanship and material. This warranty runs to the Buyer, its successors, assigns, and customers.
Products that are normally consumed in operation or which have a normal life inherently shorter than the foregoing warranty period including, but not limited to, consumables, are not covered under this warranty.
Buyer must notify Seller in writing during the warranty period of a Nonconformance and, within 30 calendar days of discovery of the Nonconformance, disposition the Product in accordance with Seller's written instructions.
Seller’s obligation and Buyer’s sole remedy under this warranty is repair or replacement, at Seller’s election, of any Product Nonconformance. All Products repaired or replaced are warranted for the unexpired portion of the original warranty period.
Seller assumes round trip shipping costs for nonconforming Products in an amount not to exceed actual reasonable direct freight charges to and from Seller's or Seller’s designated nearest warranty repair facility for such Products. Buyer will provide copies of freight invoices to Seller upon request. Round trip shipping costs expressly exclude freight forwarding, taxes, duties, and tariffs. The party initiating transportation will bear the risk of loss or damage to Products in transit. If Seller reasonably determines that a Nonconformance does not exist, then Buyer will pay all expenses related to the improper return including, but not limited to, analysis and shipping charges.
Seller will not be liable under this warranty if the Product has been exposed or subjected to any:
a) maintenance, repair, installation, handling, packaging, transportation, storage, operation or use that is improper or otherwise not in compliance with Seller’s or Seller’s designated instruction or the Product documentation or specification;
b) alteration, modification, or repair by anyone other than Seller or those specifically authorized by Seller;
c) accident, contamination, foreign object damage, abuse, neglect, or negligence after shipment to Buyer;
d) damage caused by failure of a Seller supplied Product not under warranty or by any hardware or software not supplied by Seller; or
e) use of counterfeit or replacement parts that are neither manufactured nor approved by Seller for use in Seller’s or Seller’s designated manufactured Products.
Seller has no obligation under this warranty unless Buyer maintains records that accurately document operating time, maintenance performed, and the nature of the unsatisfactory condition of Seller’s Product. Upon Seller’s request, Buyer will give Seller access to these records for substantiating warranty claims.
THESE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE. IN NO EVENT WILL SELLER BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF THESE DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NO EXTENSION OF THIS WARRANTY WILL BE BINDING UPON SELLER UNLESS SET FORTH IN WRITING AND SIGNED BY SELLER'S AUTHORIZED REPRESENTATIVE.
13. EXCUSABLE DELAY OR NONPERFORMANCE
Except for payment obligations, neither party will be liable to the other for any failure to meet its obligations due to any Force Majeure event.
14. TERMINATION
Either Party may terminate the applicable Agreement and any or all unperformed Purchase Orders by giving written notice to the other party upon the occurrence of any of the following events:
a) the other party materially breaches the applicable Agreement and fails to remedy the breach within 60 calendar days after receipt of written notice that specifies the grounds for the material breach;
b) the other party fails to make any payment required to be made under the applicable Agreement when due, and such other party fails to remedy the breach within 3 calendar days after receipt of written notice of non- payment; or
c) any insolvency or suspension of the other party's operations or any petition filed or proceeding made by or against the other party under any state, federal, or other applicable law relating to bankruptcy, arrangement, reorganization, receivership, assignment for the benefit of creditors, or other similar proceedings.
d) Seller may suspend performance under any applicable Agreement at Buyers expense if Seller determines that performance may cause a safety, security, or health risk.
e) termination does not affect any debt, claim, or cause of action accruing to any party against the other before the termination.
The rights of termination provided in this Article 14 are not exclusive of other remedies that either party may be entitled to under any applicable Agreement or in law or equity.
15. DISPUTES
Any dispute arising out of or relating to any applicable Purchase Order or Purchase Agreement, including the breach, termination, or validity thereof, will be finally resolved under the Rules of Arbitration of the International Chamber of Commerce (“Rules”) then currently in effect by 3 arbitrators appointed in accordance with the Rules. The place of the arbitration shall be in the Borough of Manhattan in the U.S. State of New York. Any award will be payable in U.S. currency. The arbitration will be governed by the U.S. Federal Arbitration Act, 9 U.S.C. §§ 1-16, and judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. The choice of law of the arbitration shall be as provided in Article 16 titled “GOVERNING LAW AND JURISDICTION” of these Terms and Conditions of Sale.
Subject to Article 16 titled “GOVERNING LAW AND JURISDICTION” of these Terms and Conditions, either party may apply to the arbitrators seeking injunctive relief until the arbitration award is rendered or the dispute is otherwise resolved. Either party also may, without waiving any remedy under any applicable Purchase Order or Purchase Agreement, seek from the court provided in Article 16 titled “GOVERNING LAW AND JURISDICTION” of these Terms and Conditions of Sale any interim or provisional relief that is necessary to protect the rights or property of that party, pending the arbitrator’s determination of the merits of the dispute.
If any dispute, or response to any dispute, includes an allegation that potentially concerns whether any intellectual property right owned, controlled, or licensable by either party is invalid, unenforceable, infringed, or misappropriated, or is otherwise limited in scope or application, then either party may, in its sole discretion, elect to have such dispute adjudicated before a court of competent jurisdiction and this section will not be binding on either party with respect to such dispute in its entirety or any related dispute, including any portions of a dispute that do not concern intellectual property rights.
16. GOVERNING LAW AND JURISDICTION
Any applicable Purchase Order or Purchase Agreement shall be governed by, and construed in accordance with, the internal laws of the U.S. State of New York, without regard to the choice of law principles thereof. Each of the parties irrevocably submits to the exclusive jurisdiction of the courts of the U.S. State of New York located in the Borough of Manhattan and the U.S. District Court for the Southern District of New York located in the Borough of Manhattan in the U.S. State of New York for the purpose of any suit, action, proceeding, or judgment relating to or arising out of any applicable Purchase Order or Purchase Agreement and the transactions contemplated thereby. For the avoidance of doubt, the courts specified in this Article 16, shall support and assist the arbitration process pursuant to Article 15 titled DISPUTES of these Terms and Conditions of Sale, including if necessary the grant of interlocutory relief pending the outcome of the arbitration process. Service of process in connection with any such suit, action, or proceeding may be served on each party anywhere in the world by the same methods as are specified for the giving of notices under any applicable Purchase Order or Purchase Agreement. Each of the parties irrevocably consents to the jurisdiction of any such court in any such suit, action, or proceeding and to the laying of venue in such court. Each party irrevocably waives any objection to the laying of venue of any such suit, action, or proceeding brought in such courts and irrevocably waives any claim that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum.
Application of the Uniform Computer Information Transactions Act and The United Nations Convention on Contracts for the International Sale of Goods, and any successor law to either is specifically excluded.
The parties will not bring a legal or equitable suite, action, or proceeding more than 1 year after the cause of action or claim arose unless a shorter period is provided by applicable law.
17. LIMITATION OF LIABILITY
IN NO EVENT WILL SELLER BE LIABLE FOR ANY INCIDENTAL CONSEQUENTIAL, SPECIAL, PUNITIVE, STATUTORY, OR INDIRECT DAMAGES, LOSS OF PROFITS, REVENUES, OR USE, OR THE LOSS OR CORRUPTION OF DATA, EVEN IF INFORMED OF THE POSSIBILITY OF THESE DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE AGGREGATE LIABILITY OF SELLER FOR ANY CLAIMS ARISING OUT OF OR RELATED TO ANY APPLICABLE ORDER OR AGREEMENT IS LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNT PAID FOR THE SPECIFIC PRODUCT OR SERVICE THAT GIVES RISE TO THE CLAIM. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THESE LIMITATIONS AND EXCLUSIONS WILL APPLY REGARDLESS OF WHETHER LIABILITY ARISES FROM BREACH OF CONTRACT, INDEMNITY, WARRANTY, TORT, OPERATION OF LAW, OR OTHERWISE.
18. CONFIDENTIALITY
Each party shall hold in confidence all Confidential Information supplied by or on behalf of the other party with respect to any applicable Purchase Order or Purchase Agreement and shall not, except with that other party’s written authority, publish, or otherwise disclose such Confidential Information except as expressly provided in any applicable Purchase Agreement or Separate Agreement unless or until the recipient party can reasonably demonstrate that any such Confidential Information is in the public domain through no fault of its own and through no breach of any applicable Purchase Order or Purchase Agreement, whereupon (to the extent that the recipient party can reasonably demonstrate that such Confidential Information is in the public domain) this obligation shall cease in respect of such Confidential Information only to the extent set forth above.
A party shall be entitled to disclose any Confidential Information acquired by it under or pursuant to any applicable Purchase Order or Purchase Agreement or Confidential Information relating to a dispute arising under any applicable Purchase Order or Purchase Agreement without the prior written consent of the other party if such disclosure is made in good faith:
a) to a third party with respect to the intent of any applicable Purchase Order or Purchase Agreement if: (1) the disclosing party authorizes it in writing; (2) the receiving party under the applicable Purchase Order or Purchase Agreement requires the third party recipient to enter into a confidentiality agreement containing terms and conditions no less stringent than those imposed upon the receiving party under any applicable Purchase Order or Purchase Agreement; and (3) the receiving party provides an executed copy of the confidentiality agreement to the disclosing party upon request of the disclosing party;
b) to any affiliate of such party, upon obtaining from such affiliate an undertaking of confidentiality equivalent to that contained in this Article 18;
c) to any outside counsel, auditors, consultants, advisers, brokers, or U.S. or other applicable government authority or officials, in each case, engaged by, on behalf of, consulted by, or a customer of such party and acting in that capacity, upon obtaining from any such party (other than legal advisers or auditors or, to the extent necessary to advance any applicable Purchase Order or Purchase Agreement, U.S. or other applicable government authority or officials) an undertaking of confidentiality equivalent to that contained in this Article 18;
d) to any lenders, security trustee/agent, bank, or other financial institution or other investors (and their advisers) from which such party is seeking or obtaining financing, after obtaining from any such person an undertaking of confidentiality equivalent to that contained in this Article 18, or if the information is given on a strictly confidential basis;
e) to the extent required by law or pursuant to an order of any U.S. or other applicable government authority or of a court of competent jurisdiction;
f) to any insurer, upon obtaining from such insurer an undertaking of confidentiality equivalent to that contained in this Article 18, or if the information is given on a strictly confidential basis; or
g) to directors, officers, employees, and agents of such party, to the extent necessary to enable such party to perform its or their obligations under any applicable Purchase Order or Purchase Agreement or to protect or enforce its or their rights under any applicable Purchase Order or Purchase Agreement; provided that such directors, officers, employees, and agents are aware of the obligations in this Article 18 with respect to the disclosed Confidential Information to such directors, officers, employees, and agents.
Each party will protect Confidential Information using the same degree of care it uses to protect its own Confidential Information, but in no event less than a reasonable degree of care. Neither party will be liable for non-negligent, inadvertent disclosure or use, provided that upon discovery of any inadvertent disclosure or use, the receiving party notifies the original disclosing party promptly, takes reasonable steps to mitigate any damage that may result from the inadvertent disclosure or use, and endeavors to prevent any further inadvertent disclosure or use.
The receiving party has no duty to protect information that is: (A) developed by the receiving party independently of the disclosing party’s Confidential Information; (B) obtained without restriction by the receiving party from a third party who had a legal right to make the disclosure; (C) publicly available other than through the breach of any applicable Purchase Order or Purchase Agreement by the receiving party; or (D) known to the receiving party at the time of its disclosure by the disclosing party, without an existing duty to protect the information.
During the term of any applicable Purchase Order or Purchase Agreement, the receiving party may use the Confidential Information strictly in connection with the intent of any applicable Purchase Order or Purchase Agreement (“Purpose”) and not use Confidential Information for any other purpose whatsoever. The receiving party may make a limited number of copies of Confidential Information as is necessary to complete the Purpose. All copies made will reproduce any restrictive legends on the original Confidential Information.
Absent express written consent from the disclosing party, the receiving party is not permitted to use or disclose the disclosing party’s Confidential Information, in whole or in part, to: (A) manufacture itself or to enable the manufacture by any third party of the disclosing party's products, products similar thereto, or products derived therefrom, without the prior written consent of the disclosing party; (B) decompile, disassemble, decode, reproduce, redesign, or reverse engineer any Products or equipment of the disclosing party or any part thereof; (C) perform any Services, including Services relating to the Products or equipment of the disclosing party; or (D) deliver under a contract or make subject to a "rights in data" clause or equivalent clause.
Nothing in any applicable Purchase Order or Purchase Agreement grants or confers any rights on the part of any party by license or otherwise, express or implied, to any invention, discovery, or to any patent covering the invention or discovery.
The receiving party will promptly notify the disclosing party, if faced with legal suit, action, or proceeding or a request under U.S. or any other applicable government regulations to disclose any of the disclosing party’s Confidential Information. If the disclosing party requests, the receiving party will cooperate in all reasonable respects to contest the disclosure, or obtain a protective order or other remedy. Except in connection with a failure to discharge the responsibilities set forth in the preceding sentence, neither party will be liable in any way for any disclosures made under judicial action or U.S. or any other applicable government regulations.
Within 180 days after the termination of any applicable Purchase Order or Purchase Agreement and upon written request of the disclosing party, the receiving party will return to the disclosing party all of the disclosing party’s Confidential Information and all copies. If not returned, the receiving party will destroy and provide a written confirmation of destruction to the disclosing party.
19. INDEMNITIES AGAINST PATENT AND COPYRIGHT INFRINGEMENT
Seller will defend Buyer against any third party suit, action, or proceeding arising out of any actual or alleged patent or copyright infringement of a valid patent or copyright, to the extent based on the Product as delivered by Seller, and indemnify for any final judgment assessed against Buyer resulting from such suit, action, or proceeding provided that Buyer notifies Seller in writing promptly after Buyer is apprised of any such third-party suit, action, proceeding, or claim, and Buyer agrees to give sole and complete authority, information, and assistance (at Seller’s reasonable expense) for the defense and disposition of the suit, action, proceeding, or claim. Seller will not be responsible for any compromise or settlement made without Seller’s prior written consent.
Seller will have no liability or obligation to defend and indemnify Buyer to the extent FAR 52.227-1 “Authorization and Consent” applies to Buyer’s prime or higher-tier contract for infringement of an U.S. patent, and Buyer is not subject to any suit, action, or proceeding for claims, damages, losses, costs, and expenses, including reasonable attorneys’ fees by a third party.
Seller will have no liability or obligation to defend and indemnify Buyer with respect to claims of infringement arising out of or based on: (a) Products supplied pursuant to Buyer’s designs, drawings, or manufacturing documentation or specifications; or (b) Products used other than for their ordinary intended purpose as documented in the Product documentation or specification; or (c) any combination of the Product with any product, article, or service not furnished by Seller; or (d) any modification of the Product other than a modification by Seller; or (e) damages based on a theory of liability other than infringement by the Product.
Further, Buyer agrees to indemnify and defend Seller to the same extent and subject to the same restrictions set forth in Seller’s obligations to Buyer as set forth in this Article 19 for any suit, action, proceeding, or claim against Seller based upon a claim of infringement resulting from (a), (b), (c), (d), or (e) of the preceding paragraph.
Because Seller has sole control of resolving infringement claims hereunder, in no event will Seller be liable for Buyer’s attorney fees or costs.
If a claim of infringement is made, or if Seller believes that such a claim is likely, Seller may, at its option, and at its expense: (a) procure for Buyer the right to continue using the Product; (b) replace or modify the Product so that it becomes non-infringing; or (c) authorize return of the Product or terminate Buyer’s license to use the infringing Product in the case of a software Product and grant Buyer a credit for the purchase price or license fee paid for such Product, less a reasonable depreciation for use, damage, and obsolescence. Further, Seller may cease shipping infringing Products without being in breach of this Agreement.
If the final judgment assessed against Buyer is based on the revenue generated from the use of the Product, as opposed to from the sale of the Product by Seller to Buyer (whether alone or in combination with any product, article, or service not furnished by Seller), then Seller’s liability under this indemnity, exclusive of defense costs, shall be limited to a reasonable royalty based on the contract price paid by Buyer to Seller for the Product that gave rise to the claim.
Any liability of Seller under this Article 19 is subject to the provisions of Article 17 titled “LIMITATION OF LIABILITY” of these Terms and Conditions of Sale.
This Article 19 states the parties’ entire liability, sole recourse, and exclusive remedies with respect to patent and copyright infringement claims. All other warranties against infringement or misappropriation of any intellectual property rights, whether statutory, express, or implied, are hereby disclaimed.
20. SOFTWARE LICENSE
Subject to Buyer’s compliance with the terms of any applicable Purchase Order or Purchase Agreement, these Terms and Conditions of Sale, and Seller’s rights, title, and interests in and to any applicable Licensed Software, Seller grants to Buyer and Buyer accepts a nontransferable, nonexclusive license, without the right to sublicense, to use the Licensed Software in the ordinary and normal operation of the Product on which it is installed or with which it is intended to be used under this license.
Seller (and its licensors, if applicable) retains all title it has to the intellectual property related to all material and software provided under any applicable Purchase Order or Purchase Agreement.
Buyer may transfer its license to use the Licensed Software to a third party only in conjunction with Buyer’s sale of any Seller or Buyer product or Products, as applicable, on which the Licensed Software is installed or with which it is used. Buyer’s transfer of the Licensed Software as authorized herein must be under terms consistent with and no less stringent than the terms set forth in any applicable Purchase Order or Purchase Agreement or these Terms and Conditions of Sale. Except as specifically permitted in any applicable Purchase Order or Purchase Agreement or these Terms and Conditions of Sale, the Licensed Software may not be sublicensed, transferred, or loaned to any other party without Seller’s prior express written consent.
Unless specifically authorized by Seller in writing, Buyer is prohibited from making copies of Licensed Software except for backup purposes. Buyer will reproduce and include all Seller Confidential Information and copyright notices and other legends both in and on every copy made.
Buyer may not directly or indirectly make any effort to deconstruct the software provided, including, but not limited to: translating, decompiling, disassembling, reverse assembling, reverse engineering, creating derivative works or compilations, or performing any other operation to obtain any portion of its contents. Buyer will take all reasonable actions necessary to prevent unauthorized access, disclosure, or use of the software and Licensed Software provided.
Notwithstanding the warranties provided elsewhere herein, Buyer acknowledges that Licensed Software may be specific to the applicable Products or products, goods, Services or services, intangible items, and technical data, technology, or software and, as such, may require reasonable adjustment or refinement to suit Buyer's specific requirements. Subject to the receipt of adequate written notice and reasonable aid from Buyer, Seller will make commercially reasonable efforts to accomplish reasonable adjustments or refinements for up to 90 calendar days after initial delivery of the Licensed Software.
Except as expressly granted herein, no license or right, including sublicensing rights, either expressly, implicitly, by estoppel, conduct of the parties, or otherwise, is granted by Seller to Buyer.
21. SPECIAL TOOLING AND DATA
Any transfer of title of Products to Buyer does not include transfer of Seller’s rights, title, and interests in and to intellectual property used to create, or that may be embodied in, the Special Tooling created for or used with the Products, other than and subject to Seller’s rights, title, and interests in and to any applicable license, Seller hereby granting a license to Buyer to use the Special Tooling. Furthermore, unless otherwise specified in the applicable Purchase Agreement, or Separate Agreement, Seller retains all rights, title, and interests Seller has in drawings, engineering instructions, specifications, and all other written data, whether or not furnished with the products.
22. EXPORT COMPLIANCE
Unless otherwise agreed in any applicable Purchase Agreement or Separate Agreement, Buyer is responsible for compliance with all import and export control laws and regulations. Buyer must obtain at its sole cost and expense all import, export, and re-export approvals and licenses required for (a) Products or products, goods transfers, Services or services, intangible items transfers, and technical data, and (b) use of all Products or products, goods, Services or services, intangible items, technology, and software, in each case of clause (a) and (b), delivered, purchased, licensed, or received from Seller. Buyer will retain documentation evidencing compliance with such import and export control laws and regulations.
Seller will not be liable to Buyer for any failure to provide Products or products, goods, Services or services, intangible items, technical data, technology, or software as a result of U.S. or other applicable government actions which impact Seller's ability to perform, including:
a) the failure to provide or the cancellation of any transfer, import, or export licenses;
b) any subsequent interpretation of any applicable transfer, import, export, or export control law or regulation after the date of any order or Purchase Agreement, that has a material adverse effect on Seller's performance; or
c) delays due to Buyer’s failure to follow any applicable transfer, import, export, or export control law and regulation.
23. TAXES AND DUTIES
Unless otherwise agreed in any applicable Purchase Agreement or Separate Agreement, Seller’s pricing excludes all taxes (including but not limited to, sales, use, excise, value-added, and other similar taxes), duties, and charges (collectively “Taxes”). Buyer will pay all Taxes resulting from any applicable Purchase Order or Purchase Agreement or Seller’s performance under any applicable Purchase Order or Purchase Agreement, whether imposed, levied, collected, withheld, or assessed now or any time hereafter. If Seller is required to impose, levy, collect, withhold, or assess any Taxes on any transaction under any applicable Purchase Order or Purchase Agreement, then in addition to the purchase price, Seller will invoice Buyer for Taxes unless at the time of order placement, Buyer furnishes Seller with an exemption certificate or other documentation sufficient to verify exemption from such Taxes. In no event will Seller be liable for Taxes paid or payable by Buyer. This clause will survive expiration or any termination of any applicable Purchase Order or Purchase Agreement.
24. NOTICES
Every notice between the parties relating to the performance or administration of any applicable Purchase Order or Purchase Agreement will be made in writing and, if to Buyer, to Buyer’s authorized representative or, if to Seller, to Seller’s authorized representative. All notices required under any applicable Purchase Order or Purchase Agreement will be deemed received when delivered either:
a) five calendar days after mailing by certified mail, return receipt requested and postage prepaid; or
b) one business day after deposit for next day delivery with a commercial overnight carrier provided the carrier obtains a written verification of receipt from the receiving party.
25. ASSIGNMENT
Neither party will assign any rights or obligations under any applicable Purchase Order or Purchase Agreement without the written consent of the other party, which consent will not be unreasonably withheld, delayed, or conditioned, except that either party may assign any applicable Purchase Order or Purchase Agreement to any affiliate of such assigning party; provide that the assigning party shall remain liable therefor unless such assignment is in connection with the sale or transfer of all or substantially all of the assets of the product line or business to which it pertains. Any attempt to assign or delegate in violation of this clause will be void.
26. WAIVER
The failure of either party to enforce at any time any of the provisions of any applicable Purchase Order or Purchase Agreement will not be construed to be a continuing waiver of any provisions of such Purchase Order or Purchase Agreement.
27. SEVERABILITY
If any provision or portion of a provision of these Terms and Conditions of Sale, any applicable Purchase Order, or any applicable Purchase Agreement are determined to be illegal, invalid, or unenforceable, the validity of the remaining provisions or portions of provisions will not be affected. The parties may agree to replace any stricken provision or portion of provision with a valid and enforceable provision or portion of provision.
28. SURVIVAL
All provisions of these Terms and Conditions of Sale which by their nature should continue in force beyond the completion or termination of any applicable Purchase Order or Purchase Agreement including, but not limited to, "PRICES”, “PAYMENTS”, “WARRANTY”, “DISPUTES”, "GOVERNING LAW AND JURISDICTION”, "LIMITATION OF LIABILITY," “CONFIDENTIALITY”, "INDEMNITIES AGAINST PATENT AND COPYRIGHT INFRINGEMENT”, “SOFTWARE LICENSE”, "SPECIAL TOOLING AND DATA”, “EXPORT”, “TAXES”, “SEVERABILITY”, "NOTICES" articles, as well as this “SURVIVAL” article, will remain in full force and effect after the expiration or termination of any applicable Purchase Order or Purchase Agreement.
29. RELATIONSHIP OF PARTIES
Unless otherwise agreed in any applicable Purchase Agreement or Separate Agreement, the parties acknowledge that they are independent contractors and no other relationship, including without limitation partnership, joint venture, employment, franchise, master/servant, or principal/agent is intended by any applicable Purchase Order or Purchase Agreement. Neither party has the right to bind or obligate the other.
30. ORDER OF PRECEDENCE
Any terms in addition to the terms of these Terms and Conditions of Sale will not apply unless expressly agreed by the parties in a Purchase Agreement or Separate Agreement. Any inconsistency in the provisions of these Terms and Conditions of Sale and any applicable Separate Agreement, Purchase Order will be resolved by giving precedence in the following order:
a) First, to any applicable Separate Agreement;
b) Second, to any applicable Purchase Agreement;
c) Third, to these Terms and Conditions of Sale; and
d) Fourth, to any applicable Purchase Order.
31. ENTIRE AGREEMENT
These Terms and Conditions of Sale contain the entire agreement between the parties with respect to the subject matter of any applicable Purchase Agreement and supersedes any prior representations or agreements, oral or written, and all other communications between the parties relating to the subject matter of these Terms and Conditions and Sale. These Terms and Conditions of Sale will not be varied except in a Purchase Agreement or Separate Agreement or any other agreement expressly providing precedence, signed by an authorized representative of each party.
32. DATE
These Terms and Conditions of Sale are dated as of June 1, 2024 and shall remain in full force and effect unless expressly superseded by a later version, and any superseded version shall be of no further force or effect.