The following Modified Product Purchases Terms and Conditions of Sale (the "Terms and Conditions") shall be deemed to be incorporated into any and all Purchase and Sales Agreements for the purchase of specially modified products requested by Customer from Seller (the "Agreement") executed between Vita Inclinata Technologies, Inc. (the “Seller”), and a party purchasing products from Seller (the “Customer”). By executing the Agreement, Customer signifies its agreement to be bound by these Terms and Conditions.
Article I: Definitions
As used in this Agreement the following terms will have the meanings set forth below:
A. “Goods” or “Products” means any products or systems developed by Seller which, upon request of Customer, have been specially modified, or integrated with an outside product that is not manufactured by Seller or normally integrated with Seller’s products or systems.
B. “Intellectual Property” means all works, inventions, designs, and tangible work products conceived, created, acquired, or put into practice in connection with any of the products or services provided by Seller hereunder.
C. “Services” means any maintenance, training, consulting or technical support rendered to Customer by Seller hereunder.
D. “Specifications” means all mutually agreed requirements with which Products and Services and performance must comply, including but not limited to, drawings, instructions, and standards. Descriptions and illustrations contained in Seller’s catalogues, brochures and other published products are for general information only and are not a part of this Agreement.
Article II: Price, Quantity and Payment Schedule
1. Payment Terms, Purchase Price, & Costs
a. Upon Seller’s acceptance of the order for Goods from Customer, Seller shall issue an invoice for a 50% down payment for each order of Goods made by Customer. Seller shall issue an invoice for the remaining balance to Customer within 30 days upon confirmation in writing of delivery of the ordered Goods to Customer. Customer shall pay all properly invoiced amounts due to Seller within 30 days after Customer’s receipt of such invoice
b. Purchase and rental price quotes, services charges and other contract terms (specifically including, but not limited to, product specifications) shall be confidential information of Seller and shall be used only for purposes of the Agreement. No such confidential information shall be disclosed by Customer without the prior written consent of Seller.
c. Customer shall purchase the products and services listed in the Agreement, and pay the corresponding amounts as may be listed thereon.
d. The purchase price does not include sales, use, or excise taxes or any other duty including port handling, import, or export fees presently in force or imposed in the future. Any such taxes or duties shall be assumed and paid by Customer without deduction from the fees and charges due to Seller. Additionally, Customer shall reimburse Seller for any payments made by Seller for fees for which Customer is responsible. All products shall be shipped to Customer, FOB Seller’s place of manufacture.
e. Without limitation to its rights or remedies, Seller shall have the right to halt its Services or delay any Product delivery until payment is received on past due invoices.
f. Past due invoices shall bear interest at the rate of eighteen percent (18%) per annum.
g. Customer shall be responsible for all collection costs, court costs, and reasonable attorney’s fees in connection with recovery of any delinquent accounts.
2. Sales Limitation
a. Customer shall not rent, lease, or license any Products without express written permission from Seller.
Article III: Delivery and Acceptance
1. Delivery Date
a. Products shall be delivered to the address stated in the Agreement, and per these Terms and Conditions.
2. Delivery and Billing Systems
a. Seller may specify, in conjunction with Customer, the delivery system, electronic data exchange, billing, and invoicing systems to be used by Customer in the course of business with Seller.
3. Charges and Duties
a. Customer shall be liable to pay all charges and duties including but not limited to carriage, freight, packaging, customs, and insurance.
i. If Customer postpones delivery of any Product, Customer shall pay Seller one percent (1%) of the purchase price per week as storage fees at Seller’s facilities.
ii. Customer shall not postpone any delivery of any Product for greater than ten (10) weeks without Seller’s express written permission.
iii. Customer shall visually inspect all Goods upon receipt and notify Seller of any non-conformity within five (5) days of receipt of the Goods or such Goods shall be deemed accepted.
iv. Deficiency and non-conformity shall be determined by reference to the contractual specifications applicable to the modified product. A modified product shall be considered defective only if Seller is able to duplicate the unsatisfactory condition, and the condition violates the applicable contract’s specifications.
v. To amend delivery instructions, Customer must provide a written request to Seller not less than one week prior to shipping date.
b. Seller shall pack all products in accordance with Seller's standards unless otherwise requested by Customer and agreed to in writing by Seller. Any additional charges incurred by Seller in connection with Customer’s packing instructions shall be borne by Customer.
c. Customer shall permit partial deliveries of products and Services by Seller.
d. Seller shall not be responsible for delays in delivery or performance due to causes beyond its reasonable control, including but not limited to Force Majeure as defined in Article X, herein.
i. Seller shall notify Customer of delay within five (5) business days of recognizing the circumstances resulting in an imminent delay, and the time for performance shall be extended for the period of such contingency.
ii. Delays shall, in no case, justify the cancellation or delay of payment.
4. Acceptance
a. Any terms and conditions proposed in any supplement to the Agreement or these Terms and Conditions shall be invalid and are rejected unless specifically agreed to by Seller in writing.
5. Changes
a. Any changes to the Agreement may result in additional charges to Customer. Prior to incurring such charges, Seller shall so advise Customer. If Customer does not object to the charges within three (3) business days of receipt of notice from Seller, the additional charges shall be deemed accepted.
Article IV: Title and Risk
1. Title
a. Seller shall retain full ownership of product(s) until full payment has been received in accordance with the Agreement, or sooner. Customer represents and warrants that any products received by it will be fully insured until the purchase price is paid in full.
b. Notwithstanding Seller retention of ownership, Customer shall incur all risks associated with loss or destruction of products.
c. Seller shall have the right and authority to repossess products, at Customer’s expense, if the purchase price is not paid when due.
2. Ownership
a. Seller has created, acquired, or otherwise has rights in various concepts, ideas, methods, methodologies, procedures, know-how, and techniques, models, templates, the generalized features of the structure, sequence and organization of software, user interfaces and screen designs; general-purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems. Nothing herein shall alter such ownership.
b. Customer shall provide Seller with reasonable opportunity to collect data from the Goods during any rental period or for the duration of time in which Customer receives Services from Seller following a purchase.
c. Seller shall own any and all data collected by the Goods or Customer’s employees, agents, and representatives during operation throughout rental periods or time in which Seller is providing Services, which relate to the operation of the Goods and associated equipment. Seller may use this data for updates and modifications of the Goods or any other use, which Seller deems appropriate or necessary.
Article V: Intellectual Property and Licenses
1. Intellectual Property Rights
a. Seller shall own all Intellectual Property associated with the Goods and any derivative works thereto without regard to the party who may have developed such derivative works. This shall include, but not be limited to, concepts, technology or techniques developed in connection with the installation or use of any products or the provision of any Services hereunder.
b. Seller shall own all rights, title to, and interest in the copyright to works of authorship created by Customer or its employees or contracted employees, as it is related to Seller’s products and systems and Customer shall execute any documents required to establish Seller’s ownership of such copyright.
2. Intellectual Property; Indemnification
a. Seller shall indemnify and hold harmless Customer and its affiliates, subsidiaries, customers, and subsequent purchasers or users from any losses or damages arising from any potential or actual claim alleging infringement or violation of intellectual property rights or licenses delivered or performed in connection with this Agreement.
b. Seller shall supersede Customer in defense of any claim, and assume and conduct the defense at Seller's sole discretion, in such an event, Customer shall be released from any obligation to pay for attorney’s fees and court costs, but shall not be released from any obligation to pay for settlement or damages, and any such release is expressly conditioned on Customer’s complete cooperation with Seller in Seller’s defense of such claim at Seller’s expense. Customer shall not enter into any settlement without Seller’s prior written consent.
c. Indemnification. Subject to the Agreement and these Terms and Conditions, Customer shall indemnify, hold harmless, and defend Seller and its parent, officers, directors, partners, members, shareholders, employees, agents, affiliates, successors, and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, fees, and the costs of enforcing any right to indemnification under these Term and Conditions or the Agreement and the cost of pursuing any insurance providers, relating to any claim of a third party or Seller arising out of or occurring in connection with:
i. claims for damages related in any way due to the malfunction, failure, or mishandling of the Goods.
ii. Customer's acts or omissions, including breach of theses Terms and Conditions or the Agreement;
iii. any failure by Customer or its personnel to comply with any applicable Laws; or
iv. allegations that Customer breached its agreement with a third party as a result of or in connection with entering into, performing under or terminating the Agreement.
3. Software License
a. Except as provided below, upon full and final payment to Seller, Seller grants Customer and its corporate affiliates, a royalty-free paid-up, worldwide, non-exclusive, perpetual, license to use the software delivered to Customer as a result of the Services and Seller’s related technology incorporated into such software. Such license may not be sublicensed without Seller’s prior written consent and may be revoked should Customer breach any of the Terms and Conditions.
4. Third-Party Software Liability
a. Seller has no liability with respect to any claims relating to or arising from the use by Customer of Third-Party Software or any other third-party products.
Article VI: Warranty
1. Limited Warranty
a. Seller warrants, for a period of twelve (12) months after acceptance of the Goods by Customer (the “Warranty Period”), that the portions of the Goods manufactured by Seller and provided hereunder shall be: (i) free from defects in material and workmanship; and (ii) manufactured in accordance with the applicable modifications or Specifications as described in the Agreement. This limited warranty is limited to the repair or replacement of only the defective portion of the Goods manufactured by Seller. SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS AND SERVICES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SELLER SHALL CREATE A WARRANTY.
2. Pass Through of Third-Party Warranties.
a. To the extent assignable by Seller, all manufacturer warranties for any products (including software) procured by Seller on Customer’s behalf in connection with the products or services provided hereunder shall be passed through to Customer and Seller shall have no liability for same.
3. Limitation of Liability.
a. Seller, its affiliates, and each of their officers, directors, stockholders, members, managers, employees, and agents shall not be liable for any loss or damage caused by delay in providing the products or services provided hereunder, to the extent that such delay is attributable to delay by Customer or caused by a Force Majeure Event. UNDER NO CIRCUMSTANCES SHALL SELLER, ITS AFFILIATES, OR ANY OF THEIR OFFICERS, DIRECTORS, STOCKHOLDERS, MEMBERS, MANAGERS, EMPLOYEES, OR AGENTS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, COLLATERAL, SPECIAL, PUNITIVE, TREBLE, EXEMPLARY, OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOST DATA OR CONTENT, BUSINESS INTERRUPTION, OR LOSS OF GOODWILL), WHETHER SUCH CLAIM IS BASED ON CONTRACT, NEGLIGENCE, TORT, WARRANTY OR ANY OTHER BASIS UNDER OR AS A RESULT OF THESE TERMS AND CONDITIONS OR THE AGREEMENT OR THE SERVICES OR MODIFIED PRODUCTS PROVIDED HEREUNDER, IRRESPECTIVE OF WHETHER CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY UNDER OR AS A RESULT OF THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT. The parties hereby agree that the limitations on liability set forth herein are independent of any exclusive or limited remedies, and shall survive and apply even if such remedies are found to have failed of their essential purpose. No action, regardless of form, arising out of the transactions under the Agreement or these Terms and Conditions may be brought by Customer more than one (1) year after the events which gave rise to the cause of action occurred.
4. Limitations of Warranty
a. The limited warranties set forth above in Article VI(1), shall not apply if the Product(s) or Service(s) upon which Customer's claim is based is:
i. not used in accordance with the documentation provided by Seller relating to the Products or Services;
ii. has been modified without Seller’s express authorization;
iii. fails to function due to a malfunction of Customer's or any third-party equipment;
iv. fails to function as a result of Customer's misuse, abuse, negligence, or unreasonable use in any way as determined by Seller.
v. causally related to any violation of any applicable national, state, and/or local law(s), ordinance(s), and/or regulation(s).
Article VII: Compliance and Requirements
1. Aviation Specific Requirements
a. Customer shall be solely responsible for conformance to all governmental regulations and certifications related to its aircraft, operations, operators, and other project-specific requirements as those regulations and certifications relate to Products provided by Seller.
2. Compliance with Laws
a. Seller and Customer shall comply with all applicable national, state, and local laws, ordinances, and regulations applicable to their respective performance hereunder.
b. Customer shall immediately notify Seller if Customer is suspended, disbarred, or restricted from doing business with the U.S. Government. Any such prohibition shall constitute a termination of the Agreement under Article IX(1)(c) of these Terms and Conditions.
c. Customer shall notify Seller in writing immediately, following the filing of formal charges, alleging Customer has committed fraud or corrupt practice in any federal, state, or foreign governmental criminal proceeding.
3. Cooperation
a. Customer shall cooperate with Seller in the performance by Seller of its Services hereunder, including without limitation, providing Seller with reasonable facilities and timely access to all relevant data, information, and personnel of Customer. Customer shall be responsible for the performance of its employees and agents and for the accuracy and completeness of all data and information provided to Seller for purposes of the performance by Seller of its Services hereunder.
Article VIII: Support
1. Training
Upon Customer’s request made during the Warranty Period, Seller shall deliver training data for maintenance of the Goods. The training material shall enable a technician to perform the recommended maintenance on the Goods. Additionally, Seller shall deliver a proposal to conduct practical hands-on training and instruction for the Customer, when requested. Training services shall be billed to Customer at Seller’s then standard rates.
2. Technical Support Services
Upon Customer’s request made during the Warranty Period, Seller shall deliver to Customer the technical assistance necessary to service, maintain, inspect, repair, overhaul, and operate the Goods.
3. Technical Publications
a. Seller shall keep and maintain all technical manuals and publications for the Goods and ensure that they are:
i. technically accurate; and
ii. and fully compliant with appropriate governmental specifications and requirements.
b. Upon Customer’s request, Seller shall deliver technical publications.
Article IX: Termination
1. Termination
a. Unless otherwise agreed, each sale is a one-time event without recurrence or a renewal period.
b. For large orders extending beyond a twelve (12) month delivery schedule, Schedule II., as amended by mutual agreement, shall control any right to terminate before delivery is completed.
c. Either Party may terminate this agreement upon thirty (30) days-notice after the non-breaching Party has given the breaching Party notice of the breach and a reasonable opportunity to cure. No such notice shall be required if the default is a default in payment.
d. Upon termination, any Products, in which Seller retains title and are in Customer’s possession, shall be returned to Seller at Customer’s sole cost, provided delivery is to Seller’s facilities. One week prior to delivery of such Products, Customer will confirm the delivery location with Seller.
Article X: Force Majeure
1. Force Majeure
a. Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached the Agreement for any failure or delay in fulfilling or performing any terms, when and to the extent such failure or delay is caused by: (a) acts of God; (b) flood, fire, explosion or chemical contamination; (c) epidemic, pandemic, quarantine restriction or plague; (d) acts of war, revolution, acts or threats of terrorism, invasion, riot, insurrection, or other armed conflict or civil unrest; (e) acts of war, revolution, acts or threats of terrorism, invasion, riot, insurrection, or other armed conflict or civil unrest; (f) national, regional, or local emergency; (g) damage to or failure of any facility from which the affected Party operates or upon which the affected Party relies for the operation of its business or any material portion thereof other than damage to or failures caused by the affected Party; or (h) national or regional shortage of adequate power, telecommunications, or transportation facilities (each of the foregoing, a "Force Majeure Event"), in each case, provided that (i) such event is outside the reasonable control of the affected Party; and (ii) such event cannot, despite the exercise of Commercially Reasonable Efforts by the affected Party, be controlled, prevented, avoided or removed the affected Party. The Party claiming excused performance by reason of a Force Majeure Event will provide reasonable notice of such claim to the other Party. A Party may unilaterally terminate the Agreement with immediate effect if a Force Majeure Event affecting the other Party continues substantially uninterrupted for a period of ninety (90) Business Days or more.
b. Unless otherwise agreed to by both Parties, lack of financial resources will not be considered an event beyond the reasonable control of the afflicted Party.
c. To claim a Force Majeure Event, the Party shall provide notice, as described in Article XII(8) herein.
i. The notice will provide the details of the pending or existing problem, which satisfies the Force Majeure Event requirements.
ii. Notice shall be given within five (5) business days of such facts coming to the attention of the Party.
iii. Notice shall also include a plan to “work-around” the issues frustrating the satisfaction of the Agreement.
Article XI: Information Terms
1. News Releases and Publicity
a. Customer shall not make or authorize any news release, advertisement, or other disclosure that relates to the Goods, any of its components, or the relationship between Customer and Seller without express written permission of Seller.
b. Customer shall not make use of the Seller’s name or logo without Seller’s prior express-written consent.
2. Inspection and Audit
a. Seller shall maintain complete inspection records for all Products which shall be available to Customer for six (6) months after the final payment, or final resolution of any dispute involving the Products delivered.
3. Security of Customer’s information
a. Customer and Seller acknowledge and agree that all information communicated to either Customer or Seller by the other Party in connection with the performance by a Party under the Agreement, including but not limited to purchase price, rental price, and other contract terms shall be received in confidence, shall be used only for purposes of the associated agreement, and no such confidential information shall be disclosed by the respective parties or their agents or personnel without the prior written consent of the other Party.
b. Except to the extent otherwise required by applicable law or professional standards, the Parties' obligations under this paragraph do not apply to information that:
i. is or becomes generally available to the public other than as a result of disclosure by Customer or Seller,
ii. known to either Customer or Seller or had been possessed by Customer or Seller without restriction against disclosure at the time of receipt thereof by Customer or Seller,
iii. was independently developed by Customer or Seller without violation of this paragraph, or
iv. Customer and Seller agree from time to time to disclose.
c. Each Party shall be deemed to have met its nondisclosure obligations under this paragraph as long as it exercises the same level of care to protect its own confidential information, to the extent that applicable law or professional standards impose a higher requirement. Seller may retain, subject to the terms of this paragraph, copies of Customer's confidential information required for compliance with applicable professional standards or internal policies.
d. If either Party receives a subpoena or other validly issued administrative or judicial demand requiring it to disclose the other Party's confidential information, such Party shall, within five (5) days of receipt of the demand, provide written notice to the other Party of such demand in order to permit such other Party to, at its own expense, seek a protective order. So long as the notifying Party gives notice as provided herein, the notifying Party shall thereafter be entitled to comply with such demand to the extent permitted by law, subject to any protective order or the like that may have been entered in the matter.
Article XII: Other Terms
1. Terms and Conditions
a. These Terms and Conditions shall apply to the Agreement. In the event of a discrepancy between the Agreement, or any supplement, schedule, or addendum, and these Terms and Conditions, these Terms and Conditions shall prevail.
2. No Waiver
a. No failure of any Party to exercise any right hereunder, or to require compliance with the Agreement or these Terms and Conditions, shall constitute a waiver by such Party of its rights contained in the Agreement or these Terms and Conditions. No concession, latitude or waiver allowed by either Party to the other at any time shall be deemed a concession, latitude, or waiver with respect to any rights unless and only to the extent expressly stated in writing, nor shall it prevent such party from enforcing any rights in the future under similar circumstances.
3. Entire Agreement
a. The Agreement and these Terms and Conditions constitute the entire agreement between Seller and Customer with respect to the subject matter hereof and supersede all other oral and written representation, understandings, or agreements relating to the subject matter hereof.
4. Amendments
a. No amendment to the Agreement or these Terms and Conditions will be effective unless it is in writing and signed by both Parties.
5. Assignment
a. Except as provided below, neither Party may assign, transfer, or delegate any of the rights or obligations hereunder without the prior written consent of the other Party.
b. Seller may assign its rights and obligations hereunder to an affiliate or successor in interest to all or substantially all of the assets or business of the relevant Seller’s practice without the consent of Customer.
6. Counterparts
a. The Agreement may be signed in one or more counterparts, which together will form a single agreement.
7. Electronic Signatures
a. The Agreement may be signed electronically.
8. Notices
a. All notices and other communications called for shall be in writing and shall either be delivered by hand, electronically, mailed via first-class mail with postage prepaid, or sent via nationally recognized overnight courier capable of providing evidence of delivery.
b. Notices shall be sent to the address listed on the signature page of the Agreement or upon any other address agreed to, in writing, by the Parties.
9. Relationship of the Parties
a. The relationship between Seller and Customer is one of independent contractors and not of principal and agent, nor of legal partners. Neither Party shall represent itself as the agent or legal partner of the other Party nor perform any actions that might result in other persons believing that it has any authority to bind or to enter into commitments on behalf of the other.
10. Applicable Law and Forum
a. The Agreement and these Terms and Conditions shall be interpreted in accordance with the plain English meaning of its terms, and the construction thereof shall be governed by the laws in force in the State of Delaware. The parties expressly waive the jurisdiction of any foreign court or tribunal.
b. Any action arising from or related to this Agreement shall be governed by Delaware State law.
c. If Customer is entitled to immunity from legal actions on the grounds of sovereignty or otherwise, Customer shall waive and not plead such immunity in any legal action arising from the Agreement.
11. Venue
a. Parties agree that all actions or proceedings arising in connection with the Agreement or these Terms and Conditions shall be tried and litigated only in the state and federal courts located in the City and County of Denver, State of Colorado or, at the sole option of Seller, in any other court in which Seller shall initiate legal or equitable proceedings and which has subject matter jurisdiction over the matter in controversy. Customer and Seller hereby waive, to the extent permitted under applicable law, any right each may have to assert the doctrine of forum non-conveniens or to object to the venue to the extent any proceeding is brought in accordance with this section.
12. Dispute Resolution
a. Parties shall attempt to resolve any disputes related to the Agreement or these Terms and Conditions through voluntary mediation; the mediator will be agreed upon by both Parties and paid for by the Party bringing the dispute unless a different arrangement is agreed upon during mediation.
b. If mediation does not resolve the dispute, Parties shall engage in binding arbitration. The arbiter, which will be agreed upon by both Parties, and the arbitration fees will be equally shared by both Parties unless a different arrangement is agreed upon or ordered by the arbiter. Arbitration shall be conducted by the Judicial Arbiter Group in Denver, Colorado. If Judicial Arbiter Group is not available, arbitration shall be through a similar private arbitration firm.
c. Each Party shall continue performing its obligations under an order pending resolution of a dispute. The dispute resolution procedures set forth in these Terms and Conditions do not supersede, delay or otherwise affect any rights of termination that are expressly set forth in Article IX.
13. Duty to Proceed
a. Except as expressly authorized in writing by Seller, no failure of Seller and Customer to reach an agreement regarding a dispute shall excuse Customer from proceeding.
14. Survival
a. All rights, obligations, and duties contained in the Agreement and these Terms and Conditions shall survive the expiration or termination of the Agreement.
15. Severability
a. In the event that any term or provision of the Agreement or these Terms and Conditions shall be held to be invalid, void, or unenforceable, the remainder of the Agreement or these Terms and Conditions shall not be affected, impaired, or invalidated, and each such term and provision of the Agreement or these Terms and Conditions shall be valid and enforceable to the fullest extent permitted by law.
