1. GENERAL.
This quote constitutes an offer by the Seller (“Seller”) to the Buyer (“Buyer”), named on the first page of this quote, for the sale of services and/or supplies (the “Goods”) as specified in the quote. The offer made in this quote is subject to the terms and conditions stated below, which in turn will become the terms and conditions of any resultant purchase agreement. The Buyer may accept this offer by providing Seller with an official purchase order, contract, or other legally binding purchasing agreement, including written confirmation citing this pricing proposal. By accepting this offer the Buyer accepts all of the terms and conditions below.
2. DEFINITIONS.
a. “Seller” means Ursa Navigation Solutions, Inc. (DBA “UrsaNav”); and
b. “Buyer” means the addressee of the quote, whether person(s), firm, or corporation, and/or its duly authorized representative; and
c. “Goods” includes, but is not limited to, the services, material, products, equipment, articles, hardware, software, firmware, or other items specified in the quote.
3. ACCEPTANCE/SOLE TERMS.
This quote and the subsequent order are expressly conditioned upon Buyer’s acceptance to the foregoing terms. No terms additional to or deviating from the foregoing terms shall become part of the order, unless and until written acceptance of such additional or deviating terms, signed by the Seller has been issued to Buyer.
4. PRICE AND PAYMENT.
Prices stated are subject to change in the event of (i) alterations in specifications, quantities, designs, or delivery schedules; (ii) increases in the cost of fuel, power, material supplied, or labor; and/or (iii) foreign or domestic legislation enacted by any level of government, including tax legislation which increases the cost of producing, warehousing, or selling the Goods purchased hereunder. No discount will be allowed unless specifically set forth in the quote. Payment terms are NET 15 unless otherwise agreed to by seller in writing. Buyer agrees to pay a delinquency charge of 1.5% per month or if such rate exceeds the maximum rate allowed by applicable law, then a delinquency charge calculated at such maximum rate on the outstanding balance not paid when due, from the date such balances were due until payment with respect thereof is made in full. If, in Seller’s opinion, the financial condition of the Buyer at any time does not justify continuance of production or shipment on the terms of payment specified, Seller may require full or partial payment in advance.
5. WARRANTY.
UrsaNav warrants its OEM products and services it performs for 90 days from date of delivery of products or completion of services. UrsaNav also will pass through any warranty for equipment that it supplies that it does not also manufacture.
Limitations and Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, URSANAV MAKES NO WARRANTIES RELATING TO THE PRODUCTS, EXPRESSED OR IMPLIED, AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY AND ANY WARRANTIES RELATING TO VIRUSES. NO PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION CONCERNING THE PERFORMANCE OF THE PRODUCTS OTHER THAN AS PROVIDED IN THIS SECTION. DKM-TECH SHALL MAKE NO WARRANTY, EXPRESS OR IMPLIED, ON BEHALF OF URSANAV.
Waiver of Consequential Damages. IN NO EVENT SHALL URSANAV BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST REVENUE, LOST PROFITS, OR LOST OR DAMAGED DATA, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF URSANAV HAS BEEN INFORMED OF THE POSSIBILITY THEREOF.
6. LIMITATION OF LIABILITY.
Seller’s liability (whether under the theories of breach of contract or warranty, negligence, or strict liability) for the Goods shall be limited to repairing or replacing, at Seller’s option, Goods found by Seller to be nonconforming, or at Seller’s option, to refunding the purchase price of the non-conforming Goods. At Seller’s request, Buyer will send, at Buyer’s sole expense, any allegedly defective Goods to the Seller’s facility from which the Goods were originally supplied, unless Seller directs otherwise.
7. DISCLAIMER OF CONSEQUENTIAL AND INCIDENTAL DAMAGES.
In no event should Seller be liable for consequential or incidental damages arising out of or in connection with this quote or resultant purchase agreement including without limitation breach of any obligation imposed on Seller hereunder or in connection herewith. The remedy under the warranty provision is limited to repair or replacement. Consequential damages for purposes hereof shall include, without limitation, loss of use, income or profit or losses sustained as the result of injury (including death) to any person or loss of or damage to property (including without limitation, property handled or processed by the use of the Goods). Buyer shall indemnify Seller against all liability, cost or expense which may be sustained by Seller on account of any such loss, damage or injury.
8. EXPORT CONTROLLED INFORMATION.
The provisions of all applicable U.S security and U.S. export control laws, statutes and regulations shall also apply hereto.
9. INTELLECTUAL PROPERTY RIGHT.
The Seller’s Intellectual Property rights are applicable and a part of these terms and conditions. Delivery of any products under this quote or resultant purchase agreement shall not constitute or be construed by Buyer as a grant of any expressed or implied license or any other right to use, for any purpose, Seller’s Patents, Trademarks, Copyrights, or other intellectual property. Buyer shall not, with respect to any design or intellectual property delivered, directly or indirectly, under this quote or resultant purchase agreement, apply or submit to the U.S. Patent and Trademark Office or any other national or international patent or trademark office, for any property right protection for intellectual property supplied by Seller. The Buyer shall not take any action inconsistent with the Seller’s intellectual property rights in the Product(s).
10. PRODUCT DESIGN.
The Buyer shall not perform or allow others to perform de-compilation, disassembly, or reverse engineering of any Product(s) hardware or software, delivered under any Buyer Purchase Order. The design, manufacture, assembly, know-how, trade secrets or any other intellectual property associated with the Product, hardware or software, shall remain the sole property of the Seller.
11. TAXES AND FEES.
Any sales, use or similar taxes, export charges, duties, import charges, tariffs, customs fees, Value Added (i.e., “VAT”), or other fees, levies, taxes, or surcharges now or hereafter imposed in connection with the production, sale, delivery, use or proceeds of the Goods herein specified (except for taxes on Seller’s net income) shall be payable by Buyer.
12. TERMINATION, CANCELLATION AND CHANGES.
Orders cannot be terminated, cancelled or modified, or shipment deferred after acceptance of Buyer’s order by Seller, except with Seller’s written consent and subject to reasonable charges for expenses incurred and work executed by Seller or its suppliers. Buyer shall be obligated to accept any portion of the goods shipped or delivered by Seller pending Seller’s written approval of cancellation. Orders for custom made material, such as engineered-to-order or configured-to-order products, may not be cancelled after Seller has been in production unless Seller agrees in writing.
13. RETURNED PRODUCTS.
Delivered Goods returned to Seller (see 6. WARRANTY) require prior written approval from Seller before such Goods will be accepted. Handling, inspection, restocking, and invoicing charges will be accessed, if applicable, plus any outgoing packing and freight expenditures paid by Seller. All returns allowed must be shipped to Seller prepaid and must be in original resale condition. Goods processed to Buyer’s specifications are not returnable.
14. NO WAIVER.
Forbearance or failure of Seller to enforce any of the terms and conditions stated herein, or to exercise any right accruing from default of Buyer, shall not affect or impair Seller’s rights arising from such defaults; nor shall forbearance or failure be deemed a waiver of Seller’s rights in case of any subsequent default of Buyer.
15. SEVERABILITY.
If any provision of this quote and subsequent purchase agreement is unenforceable or invalid, the quote and subsequent purchase agreement shall be interpreted and enforced to the greatest extent possible as if the unenforceable provision or portion had never been a part hereof.
16. ASSIGNMENT.
This quote and subsequent purchase agreement shall be binding upon and shall inure to the benefit of the successors and assigns of Buyer and Seller provided, however, that Buyer may not assign or transfer this contract, in whole or in part, except upon the prior written consent of Seller.
17. GOVERNING LAW.
This quote and subsequent purchase agreement shall be construed in accordance with and governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of law provisions. All actions or proceedings arising directly or indirectly here from shall be litigated only in the courts of the Commonwealth of Massachusetts or United States federal courts located therein and the parties hereby consent to the jurisdiction and venue of such courts.
18. ALTERNATIVE DISPUTE RESOLUTION.
Any controversy or claim arising out of or relating to this quote and subsequent purchase agreement shall be settled by arbitration in Massachusetts, United States of America, in accordance with the commercial arbitration rules of the American Arbitration Association in effect on the date of notice of arbitration, and judgment upon the award may be entered in any court of competent jurisdiction. The arbitration panel shall consist of three (3) arbitrators, one of whom shall be chosen by each party, and the third chosen by the arbitrators designated by the parties. The language of the arbitration panel must be in English. The parties shall produce records and make such employees available as witnesses as the arbitrators may direct or as may be required by law. Each party shall sustain its own costs and expenses, and one half of the fees and cost of arbitration.
19. ENTIRE CONTRACT.
Upon Buyer’s acceptance of Seller’s quote, the terms and provision set forth herein and additional terms or conditions specified in any subsequent contract shall constitute the entire purchase agreement between Buyer and Seller and no statement, correspondence, sample or other terms shall modify or effect terms hereof.