REVOLUTIONARY UNMANNED SYSTEMS LLC COMMERCIAL TERMS OF SALE
These Commercial Terms of Sale (the “Agreement”), made between you (“you” or “Customer”) and the Company, govern your purchase and use of Products and Services from Company. “Company” means Revolutionary Unmanned Systems LLC as identified on the sales documentation. This Agreement is effective upon the earliest of (i) your issuance of a purchase order to Company, (ii) your acceptance of these terms, or (iii) your agreement with a reseller that references this Agreement. If you are the end-user purchaser the Products and Services are solely for your internal use and may not be resold. If you purchased through a reseller or distributor, final prices and sales terms will be between you and the reseller or distributor; however, this Agreement applies to your possession and use of Products and Services. By placing your order, you accept and are bound to the Commercial Terms of Sale below:
In all Company documentation (Quotes, Estimates, Invoices, Contracts, Proposals, etc.), the following terms shall have the following meaning:
“Company” shall mean Revolutionary Unmanned Systems LLC.
“Customer” shall mean the purchaser of the Goods under this Contract.
“Parties” shall mean both Company & Customer.
“Supplier” shall mean the manufacturer of the Goods.
“Contract” shall mean this agreement between Customer and the Company to supply the Goods and Services subject to the terms and conditions set out in this proposal.
“Goods” shall mean the Products and Services being purchased by the Customer, as set out in the included estimate, issued by Company to Customer.
“NRE” shall mean Non-Recurring Engineering and consist of the expenses incurred by the Company under this Contract as included in the Services being purchased by the Customer, as set out the above estimate, issued by the Company to Customer.
“Location” shall mean the geographical location of the Services and the physical location where the Goods will be installed.
“UAV” shall mean an unmanned aerial vehicle, drone or similar device targeted by the Goods.
“Hardware” means computer hardware, related devices and other accessories including all embedded components (excluding Software).
“Software” means any software, library, utility, tool, or other computer or program code, in object (binary) form.
“Documentation” means the related media, printed materials, online and electronic documentation, including copies.
“Products” means Hardware, Software, or both.
“Services” means services and Deliverables provided by the Company.
“Deliverables” means the tangible materials, including reports, studies, drawings, software, manuals or written procedures and recommendations that Company delivers to you under a Statement of Work.
“Third-Party Products” means products, software, or services that are not manufactured or performed by the Company.
The Company shall sell to Customer and Customer agrees to purchase the Goods and Services in accordance with an order placed by Customer which is accepted by the Company. By placing an order for the Goods and Services, Customer shall be deemed to have accepted these terms and conditions to the exclusion of any other terms and conditions set out or referred to in any other document or other communication used by either party.
2. Additional Agreements
This Agreement, the Service Agreements and the Software Agreements (each as defined below) form a legally binding contract between you and the Company. In the event of a conflict or ambiguity, the applicable Service Agreement or Software Agreement will take precedence over this Agreement.
3. Term; Auto-Renewal
This Agreement will continue until all Services, Product Purchase warranties, or Product Maintenance warranties have expired or been terminated. If you purchased directly from Company, Hardware Service and non-perpetual Software licenses may be renewed if you pay a Product Maintenance renewal invoice from Company or continue to use the Hardware Service or Software past its initial term. If you purchased through a reseller, the payment terms for renewal for the Hardware Service or Software licenses will be as agreed between you and the reseller.
4. Estimates, Ordering, and Payment
“Order” means your order of Products or Services from Company by physical or other online process, by submitting a purchase order that references a Company Estimate, or by executing a Company order form. Your Order is subject to acceptance by Company. Acceptance of one Order is independent from any other Order. Quoted prices within Estimates are effective until the expiration date of the estimate, but may change due to shortages in materials or resources, increase in the cost of manufacturing, or other factors. Orders for Third-Party Products are subject to availability and are cancellable only by Company. Company is not responsible for pricing, typographical, or other errors in any offer, and may cancel orders affected by such errors.
5. Price, Payment, and Taxes
5.1. Estimate. All Product and Service price estimates are exclusive of any sales or use tax, delivery costs, and other levies, taxes or duties which may apply unless otherwise indicated in the Contract above. All price estimates shall be valid for a period not exceeding thirty (30) days from the date of the estimate, unless earlier rescinded by the Company.
5.2. Invoice. Final invoice for purchase of Products will be issued after the completion of an on-location site survey and engineering analysis.
5.3. Payment. Payment of the price for the purchase of the goods, any applicable sales, use or other applicable tax as well as delivery charges, shall be as follows:
· 25% of the contract amount due upon receipt of final purchase invoice as a deposit.
· 75% of the contract amount due within FIVE (5) BUSINESS DAYS of receipt of delivery.
5.4. Payment Delivery. Payment may be submitted check or electronic bank wire transfer. If making payment by check, please make checks payable to “Revolutionary Unmanned Systems LLC,” and deliver to 600 B Street, Suite 300, San Diego, CA 92101. If paying by wire, Company will supply Customer with wire transfer instructions at time of invoice.
5.5. Canceled Orders. Order can be cancelled for any reason prior to shipping, with 50% of deposit refundable within 30 days of cancelation.
5.6. Due Date. Invoices are due and payable within the period stated on the invoice, or if not stated, within 30 days from the invoice date. Payment must be made in the method and currency identified by the Company, or if not stated, in U.S. Dollars. Company may invoice parts of an Order separately or together in one invoice.
5.7. Errors. All invoices shall be deemed accurate unless Customer advises Company in writing of a material error within 10 days following receipt. If Customer advises Company of a material error, (i) any amounts corrected by Company in writing shall be paid within 14 days of correction and (ii) all other amounts shall be paid by Customer by the due date. If Customer withholds payment upon an assertion that an invoiced amount is erroneous, and Company concludes that such amount is accurate, Customer shall pay interest as described below from the due date for such amounts until Company’s receipt of those amounts. Customer may not offset, defer or deduct any invoiced amounts that Company determines are not erroneous following the notification process set forth above. Any assignment of your payment obligations to a third-party financing company must be approved in advance in writing by Company, and Customer will not be excused from your obligations under this Agreement.
5.8. Late Fees. Company may charge a late penalty of 1.5% per month on undisputed overdue amounts, or the maximum rate permitted by law, whichever is less. Late penalties will be recalculated every 30 days based on Customer’s current outstanding balance. Company, without waiving any other rights or remedies and without liability to Customer, may suspend or terminate any or all Services and refuse additional orders for Products until all overdue amounts are paid in full. Company shall be entitled to all reasonable legal and attorney fees and associated costs of collecting overdue amounts.
5.9. Shipping Charges; Title; Risk of Loss. Shipping and handling charges are not included in Product prices unless expressly indicated at the time of sale. Title to Hardware passes from Company to Customer upon shipment. Delivery of Software is FOB Origin. Loss or damage that occurs during shipping (including returns) is the responsibility of the party that selected the carrier. Shipping and delivery dates are estimates only. You must notify Company within 21 days of your invoice date if you believe any part of your Order is missing, wrong, or damaged.
5.10. Taxes. Customer is responsible for sales tax and any other taxes or governmental fees associated with your Invoice. If you qualify for a tax exemption, you must provide Company with a valid certificate of exemption or other appropriate proof of exemption. The charges stated on each line item of the invoice shall include all duties, levies or any similar charges and exclude VAT or equivalent sales or use tax. Customer shall also pay all freight, insurance, and taxes (including but not limited to import or export duties, sales, use, value add, and excise taxes). Company’s invoice shall be in accordance with applicable law. If Customer is required by law to make a withholding or deduction from payment, Customer will make payments to Company net of the required withholding or deduction. Customer will supply to Company satisfactory evidence (e.g. official withholding tax receipts) that Customer has accounted to the relevant authority for the sum withheld or deducted.
6.1. The Company will use reasonable efforts to deliver on the date agreed, but delivery dates cannot be guaranteed. The standard delivery time for the Goods are 6-8 weeks from receipt of initial payment for the Goods.
6.2. The Company will deliver by the method of Supplier’s choice unless otherwise agreed by both the Company and the Customer. Goods will be shipped to the address specified by Customer. Delivery shall be complete when the Goods arrive at the address specified by the Customer. If Customer does not select a carrier for delivery of the Goods, the Company or the Supplier shall choose a carrier. In either case, Customer is responsible for the costs of delivery.
6.3. The Company shall not be liable to the Customer for any loss or damage whether arising directly or indirectly from the late delivery of the Goods.
7. Acceptance of the Goods
7.1. The Customer shall be deemed to have accepted the Goods five (5) business days after delivery to the Customer.
7.2. The Customer shall carry out a thorough inspection of the Goods within three (3) business days of such delivery and shall give written notification to the Seller within five (5) business days of delivery of the Goods of any defects which a reasonable examination would have revealed.
8. Specifications of Goods
8.1. Changed or Discontinued Products or Services. Company or Supplier may revise or discontinue Products and Services at any time, including after Customer places an Order, but prior to Company’s shipment or performance. As a result, Products and Services Customer receives might differ from those ordered. However, Company-branded Products will materially meet or exceed all published specifications for the Products. Parts used in repairing or servicing Products may be new, equivalent-to-new, or reconditioned. The Company reserves the right to alter the specifications of the Goods, where necessary, to comply with regulations or legal requirements or where such alterations do not in the Company’s reasonable opinion materially affect your expressed requirements.
8.2. Service Agreements. Company and Supplier may provide Services, Service-related Software, or Deliverables to you in accordance with one or more “Service Agreements.” “Service Agreements” are service contracts, including “Service Descriptions”, “Statements of Work,” and any other mutually executed documents. Each Service Agreement will be interpreted separately from any other Service Agreement.
8.3. Hardware Services. “Hardware Services” are Services necessary to repair a defect in materials or workmanship of Hardware. Hardware Services do not include preventive maintenance or repairs required due to (a) software problems; (b) alteration, adjustment, or repair of the Hardware by anyone other than Supplier or Supplier’s representatives; (c) accident, misuse, or abuse of the system or component (such as fire, water leakage, use of incorrect line voltages or fuses, use of incompatible devices or accessories, improper or insufficient ventilation, or failure to follow operating instructions) that have not been caused by Company or Supplier; (d) moving of the system from one geographic location or entity to another; or (e) an act of nature.
8.4. Software. The Software is subject to, and you are bound by, the applicable Software Agreement. “Software Agreement” means (i) the software license agreements included with the software media packaging or presented to Customer during the installation or use of the Software, or (ii) if no license terms accompany the Software or are not otherwise made available to you by Company, the End User License Agreement – A Version, found at https://www.citadelthreatmanagement.com/aeula
9. Hardware Exchanges and Returns
You agree to Company’s return policy as stated at https://revolutionaryus.com/terms. Before returning for exchange Hardware, you must contact Company to obtain an authorization number for your return. Returns are facilitated by Company and fulfilled by Supplier. You must return Hardware in its original or equivalent packaging, and you are responsible for risk of loss and shipping and handling fees. If you fail to follow the return for exchange instructions, Company will not be responsible for any loss, damage, or modification of Hardware, or processing of Hardware for disposal or resale. Credit for partial returns may be less than invoice or individual component prices due to bundled or promotional pricing associated with your purchase. Title to returned or exchanged Hardware shall pass to Company upon receipt at the specified Company or Supplier facility.
10. Scope of NRE
10.1. The Scope of the NRE consist of the following and may be altered only with the mutual consent of both parties:
Pre-installation analysis by engineers including Site Survey and Analysis of the Location. Installation Support and post installation testing with UAV’s.
10.2. The Company reserves the right to alter the Scope of NRE, where necessary, for safety reasons due to poor weather conditions or the sudden change in Location(s), or to comply with local regulations or legal requirements or when such alterations do not in the Company’s reasonable opinion materially affect the expressed requirements of the Company.
11. Title, Risk of Loss, Security Interest, Insurance
11.1. Risk of loss shall pass to Customer, and the Company’s liability shall cease, when the Company places the Goods at Customer’s disposal (or at Customer’s carrier’s disposal, as Customer’s agent) at the Supplier’s facility in San Diego, CA, USA or other shipping point designated by the Company. All claims for loss or damages must be filed with Customer’s carrier. In the absence of timely and specific shipping instructions from Customer, or Customer’s selected carrier’s failure to accept the Goods on the acknowledged shipment date, the Company may select another carrier and service level similar to that of Customer’s selected carrier (if any), so as to complete the order. In such cases, Customer will promptly accept any and all Goods as if placed at the disposal of Customer or Customer’s selected carrier at The Company’s facility. Claims against the Company for shortages must be made within ten (10) days after arrival of shipment. The Company assumes no responsibility for delay, breakage or damage after having placed the Goods in good order at Customer’s or Customer’s carrier’s disposal at the Company’s facility.
11.2. Title in the Goods shall remain vested in the Company and shall not pass to Customer until payment of the full amount due under the invoice for them (including, without limitation, taxes, delivery costs), and accrued interest thereon, has been received by the Company (in cash or cleared funds) or, in the alternative, the Company delivers a document of title or registerable Bill of Sale of the Goods, bearing any necessary endorsements, to Customer. In an event, the Company will deliver to Customer a Bill of Sale, in a form acceptable to the Customer.
11.3. The Company retains a security interest in the Goods until the Company has received payment of the full amount due under the invoice for them (including, without limitation, taxes, delivery costs), and accrued interest thereon, has been received by the Company from Customer, in cash or cleared funds.
11.4. Until title to the Goods passes to Customer, Customer shall hold the Goods as Bailee for the Company and shall store or mark them so that they can at all times be identified as the property of the Company.
11.5. Until title to the Goods passes to Customer, Customer shall procure and continuously maintain and pay for insurance of the Goods to their full replacement value, and arrange for the Company to be noted on the policy of insurance as the loss payee. Customer shall provide the Company with an original policy or certificate of insurance for the Goods.
11.6. If before title to the Goods passes to Customer, Customer becomes subject to any of the events listed in Section 11, or the Company reasonably believes that any such event is about to happen and notifies Customer accordingly, then, and without limiting any other right or remedy the Company may have, the Company may at any time require Customer to deliver up the Goods and, if Customer fails to do so promptly, enter any premises of Customer or of any third party where the Goods are stored in order to recover them, and Customer hereby gives the Company permission to detach them from any other item(s) they are attached to.
12. Import and Export Law Compliance
Customer is responsible for obtaining all consents, and for complying with all legal requirements necessary, to import into and operate Goods within any country. In the event that the legal operation of the Goods requires any form of license, permit or other form of regulatory or governmental allowance Customer understands and agrees that obtaining those permissions is Customer’s sole responsibility. Customer further understands and acknowledges that the Goods and any software and related technology made available under this Contract are subject to the export laws and regulations of the United States, including the U.S. Export Administration Regulations. Customer agrees to comply with all such applicable laws and regulations, and to maintain a record of exports, re-exports, and transfers of the Equipment, software and/or related technology according to United States and local laws. Customer shall take actions necessary for obtaining any applicable export licenses and exemptions.
13. Intellectual Property
The Products and Software are protected pursuant to copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. All right, title, and interest in the intellectual property (including all copyrights, patents, trademarks, trade secrets, and trade dress) embodied in the Software, Products and Deliverables, and the methods by which the Services are performed and the processes that make up the Services, shall belong solely and exclusively to the Company or its suppliers or licensors. Subject to Company’s receipt of payment in full for the applicable Services, Company grants Customer a non-exclusive, non-transferable, royalty-free right to use the Deliverables solely (i) in the country or countries in which you do business; (ii) for your internal use; and (iii) as necessary for you to enjoy the benefit of the Services as stated in the applicable Service Agreements.
14. Customer & System Data
In connection with Company’s performance or Customer’s use of the Services and Service-related Software, Company and Supplier may obtain, receive, and/or collect data or information, including system-specific data (collectively, the “Data”). You grant Company and Supplier (i) a non-exclusive, worldwide, royalty-free, perpetual, irrevocable license to use, compile, distribute, display, store, process, reproduce, or create derivative works of the Data solely to provide the Services or Service-related Software; (ii) a license to aggregate and use the Data in an anonymous manner in support of Company and Supplier’s marketing and sales activities; and (iii) the right to copy and maintain the Data on Company or its suppliers’ servers as necessary to provide the Services. You represent and warrant that you have obtained all rights, permissions, and consents necessary to use and transfer the Data within and outside of the country in which you are located.
15. Limited Warranty
THE LIMITED WARRANTIES FOR COMPANY-BRANDED OR COMPANY-LICENSED PRODUCTS SHALL BE AS STATED IN THE DOCUMENTATION PROVIDED WITH THE PRODUCTS. IF THERE IS NO SUCH DOCUMENTATION, THEN THE WARRANTIES SHALL BE AS STATED AT https://www.citadelthreatmanagement.com/warranty-terms AND FOR A PERIOD OF 180 DAYS, THE LIMITED WARRANTIES FOR SOFTWARE SHALL BE AS STATED IN THE APPLICABLE PRODUCT AGREEMENT. THE SERVICES WILL BE PROVIDED IN A GOOD AND WORKMANLIKE MANNER. CUSTOMER’S EXCLUSIVE REMEDY AND COMPANY’S SOLE OBLIGATION FOR ANY BREACH OF ANY SERVICES WARRANTY SHALL BE FOR COPMANY TO RE-PERFORM THE NON-CONFORMING SERVICES.
THE ABOVE WARRANTIES DO NOT COVER DAMAGE DUE TO EXTERNAL CAUSES, SUCH AS ACCIDENT, ABUSE, MISUSE, PROBLEMS WITH ELECTRICAL POWER, SERVICES NOT PERFORMED OR AUTHORIZED BY COMPANY OR ITS SUPPLIERS (INCLUDING INSTALLATION OR DE-INSTALLATION), USAGE NOT IN ACCORDANCE WITH PRODUCT INSTRUCTIONS, NORMAL WEAR AND TEAR, OR USE OF PARTS AND COMPONENTS NOT SUPPLIED OR INTENDED FOR USE WITH THE PRODUCTS OR SERVICES. ANY WARRANTY FOR A THIRD-PARTY PRODUCT IS PROVIDED BY THE PUBLISHER, PROVIDER, OR ORIGINAL MANUFACTURER. ALL THIRD-PARTY PRODUCTS ARE PROVIDED BY COPMANY “AS IS.”
EXCEPT AS EXPRESSLY STATED ABOVE OR IN THE EXPRESS WARRANTIES, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY (INCLUDING COMPANY AFFILIATES, CONTRACTORS, AND AGENTS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, AND OFFICERS), ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS MAKES NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO ANY OF THE PRODUCTS OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY (i) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY, OR NON-INFRINGEMENT; (ii) FOR ANY THIRD-PARTY PRODUCTS; (iii) FOR THE PERFORMANCE OF OR RESULTS TO BE OBTAINED FROM ANY PRODUCTS OR SERVICES; OR (iv) THAT THE PRODUCTS OR SERVICES WILL OPERATE OR BE PROVIDED WITHOUT INTERRUPTION OR ERROR.
THE COMPANY-BRANDED PRODUCTS AND SERVICES ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS ANY APPLICATION IN WHICH THE FAILURE OF THE PRODUCTS OR SERVICES COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE (COLLECTIVELY, “HIGH-RISK ACTIVITIES”). COMPANY AND SUPPLIERS EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH-RISK ACTIVITIES.
16. Limitation of Liability
REVOLUTIONARY UNMANNED SYSTEMS LLC WILL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS OR SERVICES. EXCEPT FOR YOUR BREACH OF SECTIONS 3(D) OR 7, OR YOUR VIOLATION OF COMPANY’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY SHALL HAVE LIABILITY FOR THE FOLLOWING: (i) LOSS OF REVENUE, INCOME, PROFIT, OR SAVINGS; (ii) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF A SYSTEM OR NETWORK OR THE RECOVERY OF SUCH; (iii) LOSS OF BUSINESS OPPORTUNITY; (iv) BUSINESS INTERRUPTION OR DOWNTIME; (v) THE PRODUCTS, DELIVERABLES OR THIRD-PARTY PRODUCTS NOT BEING AVAILABLE FOR USE; OR (vi) THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES.
COMPANY’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING PRODUCTS AND SERVICES) IN ANY 12 MONTH PERIOD SHALL NOT EXCEED THE TOTAL AMOUNT RECEIVED BY COMPANY DURING THE PRIOR 12 MONTHS OF THIS AGREEMENT FOR THE SPECIFIC PRODUCT OR SERVICE GIVING RISE TO SUCH CLAIM(S). IN NO CASE SHALL COMPANY’S LIABILITY EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY YOU TO COMPANY FOR THE GOODS.
THESE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE. THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR COPMANY’S SALE OF PRODUCTS OR SERVICES TO CUSTOMER, AND WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.
17. Termination or Suspension
17.1. Suspension or Modification of Services. Company may suspend, terminate, withdraw, or discontinue all or part of the Services when Company believes, in its sole judgment, that you are involved in any fraudulent or illegal activities.
17.2. Termination. Either party may terminate a Service Agreement or Software Agreement if the other party commits a material breach and the breach is not cured within 90 days of receipt of written notice. Termination of any Service Agreement will not terminate other Service Agreements, and termination of all Service Agreements will not terminate this Agreement. Company may terminate this Agreement and all Service Agreements and Software Agreements immediately, if (i) Customer fails to make any payment when due; (ii) Customer declares bankruptcy or are adjudicated bankrupt; (iii) a receiver or trustee is appointed for Customer or substantially all of Customer’s assets; or (iv) Customer purchased through a reseller and, as applicable, the agreement between you and such reseller expires or is terminated, the agreement between Company and such reseller expires or is terminated, or your reseller is delinquent on its payment obligations to Company. Further, Company may terminate a Service Agreement immediately if you are acquired by or merge with a competitor of the Company. Upon termination of this Agreement, all rights and obligations under this Agreement will automatically terminate except for rights of action accruing prior to termination, payment obligations, and any obligations that expressly or by implication are intended to survive termination.
18. Hold Harmless and Indemnity
18.1. Use and Operation. In consideration of Customer’s payment to Company of the sum specified in invoice, Customer does hereby for itself, its successors, assigns, employees and agents, release and forever discharge Company, its predecessors, successors, licensees, assigns and its parent, subsidiary and affiliated companies, and the directors, officers, employees, subcontractors and their agents, licensees and assigns of each of the foregoing from any and all claims, liabilities, damages, costs, expenses and causes of action arising out of or related to Customer’s, use or operation of the Goods, including without limitation any claims for liabilities or damage to a UAV or any third parties.
18.2. As between Company and Customer, Customer agrees to be solely responsible for any and all injury or other damage to a UAV or any third parties or any property arising out of or related to Customer’s use or operation of the Product. Customer shall be liable for acts or omissions of its agents, employees and subcontractors which directly result in injury or damage to any third party or to the UAV and/or persons.
18.3. Customer agrees to defend, indemnify and hold harmless Company, its successors, licensees, assigns, and its parent, subsidiary and affiliated companies, and the directors, officers and employees and their estates, agents, licensees and assigns of each of the foregoing, from and against any and all claims, liabilities, damages, costs, expenses and causes of action arising out of or related to: (a) Customer’s use and operation of the Goods; (b) Customer’s negligence with respect to the Goods; and/or (c) any failure to properly maintain the Goods.
18.4. Patent, Trademark, Copyright. Company represents and warrants that it has conducted, and will conduct, all patent, trademark and copyright searches necessary to identify and evaluate any potential infringement claims with respect to the Goods. Company agrees to indemnify, defend and hold Customer and its employees, Subsidiaries, Affiliates, successors and assigns harmless from and against all claims, damages, losses, costs and expenses, including attorneys' fees, arising from any recall, replacement or impoundment of any Goods and any third party claims asserted against Customer and its employees, Subsidiaries, Affiliates, successors and assigns, that are based in part or in whole on any of the following: (a) Specifications, Company Proprietary Information and Technology, any Goods, or any information, technology and processes supplied and/or approved by Company or otherwise required by Company; (b) actual or alleged noncompliance with government agencies; (c) that any item in subsection (a) infringes or violates any patent, copyright or other intellectual property right of a third party, and (d) design or product liability alleging that any item in subsection (a) has caused or will in the future cause damages of any kind. Customer may employ counsel, at its own expense to assist Company with respect to any such claims, provided that if such counsel is necessary because of a conflict of interest with Company or its counsel or because Company does not assume control of the defense of a claim for which Company is obligated to indemnify Customer hereunder, Company shall bear such expense. Company shall not enter into any settlement that affects Customer’s rights or interests without Customer’s prior written approval, which shall not be unreasonably withheld. Customer will provide such assistance and cooperation as is reasonably requested by Company or its counsel in connection with such indemnified claims.
18.5. Third Party. If you purchased Products or Services directly from Company, Company shall defend and indemnify you against any third-party claim that Company-branded Products or Services (excluding Third-Party Products and open source software) infringe or misappropriate that third party’s United States (“U.S.”) patent, copyright, trade secret, or other intellectual property rights (“Claim(s)”). In addition, if Company receives prompt notice of a Claim that Company believes is likely to result in an adverse ruling, then Company shall at its option, (i) obtain a right for you to continue using such Products or Deliverables or for Company to continue performing the Services; (ii) modify such Products or Services to make them non-infringing; (iii) replace such Products or Services with a non-infringing equivalent; or (iv) if you purchased directly from Company, refund any pre-paid fees for the allegedly infringing Services that have not been performed or provide a reasonable depreciated or pro rata refund for the allegedly infringing Product or Deliverables. Company shall have no obligation for any claim arising from (a) modifications of the Products and Services that were not performed by or on behalf of Company; (b) misuse, or the combination or use with Third-Party Products (the combination of which causes the claimed infringement); or (c) Company’s compliance with your written specifications, including the incorporation of any software or other materials or processes you provide or request. Company’s duty to indemnify and defend the Claim is contingent upon: (x) your prompt written notice of the Claim; (y) Company’s right to solely control the defense and resolution of the Claim; and (z) your cooperation in defending and resolving the Claim. These are your exclusive remedies for any third-party intellectual property claim, and nothing in this Agreement or elsewhere will obligate Company to provide any greater indemnity.
18.6. Customer shall defend and indemnify Company against any third-party claim resulting or arising from: (i) Customer’s failure to obtain any appropriate license, intellectual property rights, or other permissions, regulatory certifications, or approvals associated with technology or data provided by you, or associated with software or components requested by you to be used with, or installed or integrated as part of the Products or Services; (ii) your violation of Company’s or Supplier’s intellectual property rights; (iii) any inaccurate representation regarding the existence of an export license or any allegation made against Company or Supplier due to your alleged violation of applicable export laws; or (iv) your transferring or providing access to Excluded Data (as defined below) to Company.
18.7. Each party shall defend and indemnify the other against any third-party claim for personal bodily injury, including death, where the injury has been exclusively caused by the indemnifying party’s gross negligence or willful misconduct in connection with this Agreement.
19. Confidentiality Obligations
“Confidential Information” means information that is designated as confidential or should reasonably be understood to be confidential. Confidential Information may only be disclosed to the receiving party’s personnel, professional advisors, agents, and subcontractors (“Representatives”), on a “need-to-know” basis in connection with this Agreement. Representatives shall be bound to treat the Confidential Information under terms at least as restrictive as those herein, and the receiving party shall be liable for unauthorized disclosures by its Representatives. Each party will use at least the same degree of care as it employs with respect to its own Confidential Information, but not less than a commercially reasonable standard of care. The foregoing shall not apply to information that (i) is independently developed without use of the other party’s Confidential Information; (ii) has been obtained from a source which is not under a confidentiality obligation; or (iii) is or becomes publicly available without fault of the receiving party. If receiving party must disclose Confidential Information as required by law, it shall give reasonable prior notice to the disclosing party. These obligations shall continue for 3 years from the initial date of disclosure, except that obligations related to information about a party’s intellectual property shall never expire.
The information, terms and pricing in the above Contract to Customer is confidential and Customer acknowledges and agrees that it will not disclose that information and will not permit its employee’s or agents to disclose that information to any third party. Any such disclosure will be considered a material breach of this agreement.
20. Compliance with Laws
20.1. In performing its obligations under this Agreement, each party agrees to comply with all laws and regulations applicable to such party including the customs and export control laws and regulations of the U.S.; and the country in which the Products or Services are delivered or performed. Customer is subject to and solely responsible for compliance with the export control and economic sanctions laws of the United States and other applicable jurisdictions, as well as compliance with Company and Supplier trade compliance policies. Customer’s purchase may not be used, sold, leased, exported, re-exported, or transferred except with prior written authorization by Company’s trade compliance and/or legal teams and in compliance with such laws, including, without limitation, export licensing requirements, end-user, end-use, and end-destination restrictions, and prohibitions on dealings with sanctioned individuals and entities, including but not limited to persons on the Office of Foreign Assets Control's Specially Designated Nationals and Blocked Persons List or the U.S. Department of Commerce Denied Persons List. Customer represents and warrants that it is not the subject or target of, and that Customer is not located in a country or territory that is the subject or target of, economic sanctions of the United States and other applicable jurisdictions.
20.2. Customer certifies that all items (including hardware, software, technology and other materials) it provides to Company or Supplier for any reason that contain or enable encryption functions either (i) satisfy the criteria in the Cryptography Note (Note 3) of Category 5, Part 2 of the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies or (ii) employ key length of 56-bit or less symmetric, 512-bit asymmetric or less, and 112-bit or less elliptic curve. Company and Supplier are not responsible for determining whether any Third-Party Product to be used in the Products and Services satisfies regulatory requirements of the country to which such Products or Services are to be delivered or performed, and Company shall not be obligated to provide any Product or Service where the resulting Product or Service is prohibited by law or does not satisfy the local regulatory requirements.
20.3. Company’s privacy policies explain how Company treats your personal information and protects your privacy and can be found at https://revolutionaryus.com/terms.
20.4. Supplier’s privacy policies explain how Supplier treats your personal information and protects your privacy and can be found at https://www.citadelthreatmanagement.com/privacy.
21. Additional Terms
21.1. Independent Subcontractor Relationship; Assignment; Subcontracting. The parties are independent contractors. Neither party will have any rights, power or authority to act or create an obligation on behalf of the other party except as specified in this Agreement. Neither party’s employees, agents, nor consultants shall be considered under any circumstances to be employees of the other party. Company has the right to assign, subcontract, or delegate in whole or in part this Agreement, or any of its rights, duties, obligations or liabilities provided that if it subcontracts its duties in providing Services, Contract shall remain responsible for the performance of such Services under this Agreement. You may not assign this Agreement without Company’s permission.
21.2. Excused Performance. A party shall not be liable to the other for any delay in performing its obligations if the delay is caused by circumstances beyond its reasonable control, provided that the other party is promptly notified in writing. If the circumstance lasts longer than 30 days, then the other party may terminate, in whole or in part, this Agreement or the affected Service Agreement or Software Agreement by giving written notice to the delayed party. This Section shall not relieve either party of its obligations under this Agreement (including payment), but rather will only excuse a delay in performance.
21.3. Excluded Data. Customer acknowledges that Products and Services provided under this Agreement are not designed to process, store or be used in connection with any of the following categories of data: (i) data that is classified and/or used on the U.S. Munitions list, including software and technical data; (ii) articles, services and related technical data designated as defense articles and defense services; (iii) ITAR (International Traffic in Arms Regulations) related data; and (iv) other personally identifiable information that is subject to heightened security requirements as a result of Customer’s internal policies or practices or by law (collectively referred to as “Excluded Data”). You are solely responsible for reviewing data that will be provided to or accessed by Company to ensure that it does not contain Excluded Data.
21.4. U.S. Government Restricted Rights. The software and documentation provided with the Products and Services are “commercial items” as that term is defined at 48 C.F.R. 12.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end-users acquire the software and documentation with only those rights set forth herein. Contractor/manufacturer of Company-branded Software and Company-branded Products is Citadel Defense Company, 100 W 35th Street, suite F National City, CA 91950.
22. Force Majeure
Neither Party shall be liable for any loss or damage or be deemed to be in breach of this Agreement to the extent that performance of such Party's obligations or attempts to cure any breach under this Agreement are delayed or prevented as a result of any event or circumstances beyond its reasonable control, including without limitation, war, invasion, act of foreign enemy, hostilities, civil war or rebellion (whether war be declared or not), strike, lockout or other industrial dispute, weather-related catastrophe or act of God.
23. Governing Law; Dispute Resolution; Jurisdiction
23.1. Mediation. Any controversies or disputes arising out of the terms of this Agreement or its interpretation shall be resolved in the following sequential manner: First, upon receipt of notice of a dispute from either Party, the Parties shall meet and confer in person to attempt to resolve the dispute; Second, if the Parties are unable to resolve the dispute within ten (10) days of the notice of dispute, the Parties shall submit the matter to non-binding mediation with a neutral third-party mediator of their mutual choice, or if the Parties cannot mutually agree on a mediator, then the Parties shall utilize National Conflict Resolution Center in San Diego, California, or successor organization; and lastly, if the prior two alternative dispute resolution methods do not resolve the conflict within areasonable time under the circumstances, then the Parties agree that the dispute shall be settled by arbitration at the offices of Judicial Arbitration and Mediation Services, Inc. (“JAMS”), or successor organization, for binding arbitration in San Diego County by a single arbitrator who shall be a former California Superior Court judge with experience related to the dispute. The arbitrator may grant injunctions or other relief in such dispute or controversy. All awards of the arbitrator shall be binding and non-appealable. Judgment upon the award of the arbitrator may be entered in any court having jurisdiction. The arbitrator shall apply California law to the merits of any dispute or claims, without reference to the rules of conflicts of law applicable therein. Any judgment upon award may be entered in any court having jurisdiction thereof. The prevailing Party in any such court action shall be entitled to an award of reasonable attorneys’ fees.
23.2. Bench Trial. The parties agree to waive, to the maximum extent permitted by law, any right to a jury trial with respect to any Dispute.
23.3. No Class Actions. NEITHER PARTY SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR PURSUE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
23.4. RULES AND PROCEDURE OF THE ARBITRATION SHALL BE THOSE RULES AND PROCEDURES THEN IN EFFECT WHICH CAN BE FOUND AT: HTTPS://WWW.JAMSADR.COM/ADR-RULES-PROCEDURES/ (“ADR RULES”).
THE PARTIES HEREBY ACKNOWLEDGE THAT THEY EACH HAVE HAD THE OPPORTUNITY TO ACCESS AND/OR REVIEW THE ADR RULES AND AGREE TO BE SUBJECT TO THE ADR RULES:
All notices shall be in writing and delivered either in person, by any method of mail (postage prepaid) requiring return receipt, or by overnight courier or facsimile confirmed thereafter by any of the foregoing, to the party notified at its address given below. Notice shall be deemed sufficiently given for all purposes upon the earlier of: (i) the date of actual receipt; (ii) if mailed, three (3) calendar days after the date of postmark; or (iii) if delivered by overnight courier, the next business day the overnight courier regularly makes deliveries.
RevUS, ATTN: Contracts Manager
600 B Street, Suite 300
San Diego, CA 92101
25. Limitation Period
NEITHER PARTY Shall be liable for any claim brought more than 2 years after the cause of action for such claim first arose.
26. Entire Agreement; Severability, Waiver, Amendments
26.1. Severability. This Agreement is the entire agreement with respect to its subject matter and supersedes all prior or contemporaneous communications or agreements that may exist. In entering into this Agreement, neither party is relying upon any representations or statements of the other that are not fully expressed in this Agreement; rather each party is relying on its own judgment and due diligence and expressly disclaims reliance upon any representations or statements not expressly set forth in this Agreement. If you purchased directly from Company, any preprinted terms on your purchase order shall be of no force or effect. Modifications to this Agreement will be made only through a written amendment signed by both parties. If any provision of this Agreement is found to be void or unenforceable, such provision will be stricken or modified, but only to the extent necessary to comply with the law, and the remainder of this Agreement will remain in full force. No rights may arise by implication or estoppel, other than those expressly granted herein.
26.2. Waiver. The failure of either party to enforce any term of or right arising pursuant to this Contract does not constitute a waiver of such term or right and shall in no way affect that party’s right later to enforce or exercise the term or right.
26.3. Amendments. This Contract contains the entire understanding and agreement of the parties, and all prior discussions and understandings are merged herein. No amendment or future understanding shall be binding unless first reduced to writing and executed by both parties.