FPVBLUE TERMS AND CONDITIONS OF SALE
1. TERMS OF AGREEMENT. These terms and conditions of sale (the “Terms”) apply to and form an integral part of: (a) the purchase of products or licenses to products (each, a “Product”) and services purchased by any individual or legal entity (“Buyer”); (b) all quotations, offers and sales by of Narkive Ltd. (“fpvblue”) or by its subsidiaries or other affiliates (each, an “Affiliate”); (c) all acceptances, acknowledgements or confirmations by fpvblue of any order of Buyer, including orders of Buyer resulting from any pricing or other framework agreement between any Buyer and fpvblue; and (d) any agreement incorporating these Terms by reference.
Acceptance by Buyer of these Terms may be evidenced by Buyer or its representative’s: (i) purchase of Product, (ii) clicking an acceptance button or checking an acceptance box online or similar act of acceptance, (iii) or written or verbal assent, (iv) acceptance of delivery of the Products or the first installment of the Products (if applicable), (v) payment or partial payment, or (vi) other conduct constituting acceptance.
2. DELIVERY AND QUANTITIES.
(a) Second Batch Delivery Dates. All of the units from fpvblue’s second production batch are estimated for delivery by January 31, 2018. If Buyer ordered one or more units and fpvblue does not deliver such units by that date, then Buyer may cancel the undelivered portion of the order at Buyer’s request and fpvblue will refund the payment for the units that Buyer purchased but did not receive and cancelled. This cancellation and refund is Buyer’s sole and exclusive remedy for fpvblue failing to deliver by the January 31, 2018 estimated delivery date, and Buyer must cancel the order by April 30, 2018 to avail itself of this remedy.
(b) Other Delivery Dates. Except for the delivery dates described in Section 2(a) above and delivery dates explicitly guaranteed using the words “guaranteed delivery” in the order confirmation sent by fpvblue: (i) delivery dates communicated or acknowledged by fpvblue are approximate only; (ii) fpvblue shall not be liable for, nor shall fpvblue be in breach of its obligations to Buyer because of any delivery made within a reasonable time before or after the stated delivery date; and (iii) Buyer will give fpvblue written notice of failure to deliver and ten (10) days within which to cure. In any case, Buyer’s sole and exclusive remedy after such cure period or guaranteed delivery date is to cancel the affected and undelivered portions of the order, and receive a refund for the undelivered portions that were cancelled.
(c) Products shall be delivered EXWORKS (Incoterms 2000) fpvblue’ manufacturing facility, or other facility as designated by fpvblue, unless otherwise agreed in writing between fpvblue and Buyer.
(d) In the event Buyer contests delivery, the Buyer must request a proof of delivery from fpvblue within ten (10) days of the date of fpvblue’ invoice or guaranteed delivery date (whichever occurs first), otherwise delivery shall be deemed completed. If Buyer fails to take delivery, then fpvblue may deliver the Products in consignment at Buyer’s costs and expenses. Timely delivery requires Buyer to provide all necessary order and delivery information sufficiently prior to the agreed delivery date. Delivery may also be contingent on full payment. No order, Agreement or any part thereof may be rescheduled or cancelled without fpvblue’ prior written consent except for cancellations permitted under this Section 2.
(d) No order, Agreement or any part thereof may be rescheduled or cancelled without fpvblue’s prior written consent.
3. RIGHTS IN SOFTWARE, DOCUMENTATION AND INTELLECTUAL PROPERTY. All intellectual property rights covering Products including without limitation any and all software or documentation or data included in, with or comprising Products, and all ownership rights in and to such intellectual property rights, software, documentation and data, shall remain solely and exclusively with fpvblue or its third party suppliers, whether or not it was developed specifically for the Buyer. Payment by Buyer of non-recurring charges, as may be made to fpvblue for special design, engineering or production materials required for fpvblue’s performance on orders deviating from fpvblue’s established product line, shall not convey title to either the design or special materials, but title shall remain in fpvblue. Except for licenses explicitly identified in an order confirmation, no rights or licenses are granted, or implied by estoppel or otherwise, under any intellectual property rights of fpvblue or its affiliates or any intellectual property residing in the Products, including software or documentation or any data furnished by fpvblue, except for the license under fpvblue’s intellectual property rights to operate the Products delivered by fpvblue to Buyer for their ordinary function, and subject to the provisions set forth herein. None of the software, data or electronic files embedded into the Products or accompanying the Products are sold to Buyer. Notwithstanding anything to the contrary herein, these Terms shall not be construed as conferring any license, right or immunity, either directly or by implication, estoppel or otherwise to Buyer or any third party: (a) with respect to any trademark, trade or brand name, a corporate name of fpvblue or its affiliate(s), or any other name or mark, or contraction abbreviation or simulation thereof; (b) covering a standard set by a standard setting body or agreed to between at least two companies; or (c) if fpvblue has informed Buyer or has published (in a datasheet concerning the Product or elsewhere) a statement that a separate license is needed or useful. The absence of such a statement in a given version of the datasheet is of no consequence whatsoever if a subsequent version of the datasheet does contain such a statement. Notwithstanding anything to the contrary herein, these Terms shall not be construed as obligating fpvblue or its affiliate(s) to furnish any manufacturing or technical information.
Buyer shall not duplicate, copy or distribute software or documentation except as specifically provided pursuant to a separate, written license duly executed by fpvblue. Unless otherwise specifically provided in writing and signed by fpvblue, Buyer shall not have the right to any software source code. Buyer shall not: (a) modify, adapt, alter, translate, or create derivative works from, the software; (b) assign, sublicense, lease, rent, loan, transfer, disclose, or otherwise make available the software; (c) merge or incorporate the software with or into any other software; or (d) reverse assemble, decompile, disassemble, or otherwise attempt to derive the source code for the Software without written authorization from fpvblue. If fpvblue licenses Buyer to make copies of software or documentation, then Buyer shall reproduce, without any amendments or changes thereto, any proprietary rights legends of fpvblue or its third party suppliers in any software or documentation provided by fpvblue. Signatures required under these Terms do not include electronic signatures as may otherwise be permitted by applicable law.
Buyer’s rights under the Agreement are conditioned upon Buyer not performing any actions that would result in the Product or any derivative work thereof to be licensed as “Open Source Software”, for example, that would require a Product to be disclosed or distributed in source code form, be licensed for the purpose of making derivative works, or redistributable at no charge.
4. LIMITED PRODUCT WARRANTY AND DISCLAIMER.
(a) WARRANTY AGAINST DEFECTS. fpvblue warrants that under normal use the Products (excluding those referred to in Section 4(b) below) shall, at the time of delivery to Buyer and be substantially free from defects in material or workmanship and shall substantially conform to fpvblue’s specifications for such Product. Buyer will notify fpvblue in writing of any non-conforming Products within ten (10) days of delivery, otherwise fpvblue will have no further obligation or warranty for such Products. Such notice will describe in reasonable detail the non-conformance claimed by Buyer. Delivered Product will be deemed accepted and conforming unless Buyer provides such notice within the ten (10) day period.
(b) FPVBLUE’ SOLE AND EXCLUSIVE OBLIGATION, AND BUYER’S SOLE AND EXCLUSIVE RIGHT, WITH RESPECT TO CLAIMS UNDER ITS WARRANTIES SHALL BE LIMITED TO THE REPLACEMENT OR REPAIR OF A DEFECTIVE OR NON-CONFORMING PRODUCT, OR IF FPVBLUE CANNOT REPAIR OR REPLACE SUCH PRODUCT AFTER USING COMMERCIALLY REASONABLE EFFORTS, THEN A REFUND TO BUYER FOR THE PURCHASE PRICE THEREOF. FPVBLUE WILL HAVE A REASONABLE TIME TO REPAIR, REPLACE OR REFUND. THE NON-CONFORMING OR DEFECTIVE PRODUCTS SHALL BECOME FPVBLUE’ PROPERTY AS SOON AS THEY ARE RETURNED FOR REPLACEMENT OR REFUND.
(c) At fpvblue’s request, Buyer will ship Products returned under warranty claims to fpvblue’s designated facility in conformance with fpvblue’s then-current Return Material Authorization policy and are accompanied by a statement of the reason for the return on a Return Material Authorization form issued by fpvblue. Where warranty adjustment is made, fpvblue will pay for freight expenses. Buyer shall pay for returned Products that are not defective or non-conforming together with the freight, testing and handling costs associated therewith. Except as provided in this Section 4, fpvblue has no obligation to accept returns.
(d) Notwithstanding the foregoing, fpvblue shall have no obligations for breach of warranty if the alleged defect or non-conformance is found to have occurred as a result of environmental or stress testing, misuse, neglect, improper installation, accident or as a result of improper repair, operation at voltages other than as specified by fpvblue, use with equipment other than that sold by fpvblue, alteration, modification, storage, transportation, improper handling or crashes. Further, a computing Product will be deemed to operate within its specifications if it varies within ten (10%) more or less than the performance stated in its specifications when operated at the nominal voltage specified by fpvblue.
(e) THE WARRANTY GRANTED ABOVE SHALL EXTEND DIRECTLY TO BUYER AND NOT TO BUYER’S CUSTOMERS, AGENTS OR REPRESENTATIVES. THE EXPRESS WARRANTY GRANTED ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. ALL OTHER WARRANTIES WHETHER EXPRESSED OR IMPLIED ARE HEREBY SPECIFICALLY DISCLAIMED BY FPVBLUE.
(f) Except as provided by Section 6, the foregoing states the entire liability of fpvblue, and Buyer’s sole and exclusive remedies, in connection with defect or non-conforming Products.
5. LIMITATION OF LIABILITY.
(a) EXCEPT AS PROVIDED IN SECTION 6, NOTWITHSTANDING ANYTHING TO THE CONTRARY, FPVBLUE SHALL IN NO CASE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR LOST SAVINGS) ARISING OUT OF ANY AGREEMENT WHETHER OR NOT SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY – EVEN IF FPVBLUE HAS BEEN ADVISED, OR IS AWARE, OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL FPVBLUE BE LIABLE FOR EXCESS PROCUREMENT COSTS AND REWORK CHARGES.
(b) EXCEPT AS PROVIDED IN SECTION 6, FPVBLUE’ AGGREGATE LIABILITY TOWARDS BUYER UNDER ANY AGREEMENT SHALL NOT EXCEED AN AMOUNT EQUAL TO: (1) THE GREATER OF THE AMOUNT ACTUALLY RECEIVED BY FPVBLUE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO ANY LIABILITY FOR THE PRODUCTS CAUSING ANY LIABILITY; OR (2) IN THE CASE OF LIABILITY FOR DELAY OR NON-DELIVERY OF PRODUCTS, THE PURCHASE PRICE PAID FOR SUCH PRODUCTS.
(c) Any claim for damages must be brought by Buyer within ninety (90) days of the date of the event giving rise to any such claim, and any lawsuit relative to any such claim must be filed within one (1) year of the date of the claim. The limitations of liability set forth in this Section 5 will be read to apply to any liability of fpvblue Affliates, as aggregated with the liability of fpvblue.
6. APPLICABLE LAW EXCEPTIONS. NOTHING IN SECTIONS 4 OR 5 SHALL EXCLUDE OR LIMIT FPVBLUE’S WARRANTY OR LIABILITY FOR LOSSES TO THE EXTENT THAT THEY MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT, BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ONLY THE EXCLUSIONS AND LIMITATIONS THAT ARE LAWFULLY APPLIED TO BUYER WILL APPLY TO BUYER, AND FPVBLUE’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. The limitations liability set forth in Section 5 shall not apply to death or personal injury caused by the negligence of fpvblue.
7. CONFIDENTIALITY. Buyer acknowledges that all technical, commercial and financial data disclosed to Buyer by fpvblue is the confidential information of fpvblue. Buyer shall not disclose any such confidential information to any third party and shall not use any such confidential information for any purpose other than as agreed by the parties and in conformance with the purchase transaction contemplated herein.
8. COMPLIANCE WITH LAWS. Each party hereto represents that it its duly authorized to enter into the Agreement and represents that with respect to its performance hereunder, and that each will comply with all applicable federal, state and local laws.
9. REGULATORY REQUIREMENTS. fpvblue is not responsible for determining whether any Product satisfies the local regulatory requirements of the country to which such Products are to be delivered, and fpvblue shall not be obligated to provide any Product where the resulting Products do not satisfy the local regulatory requirements.
10. ASSIGNMENT AND SETOFF. Buyer shall not assign any rights or obligations under the Agreement without the prior written consent of fpvblue. Buyer hereby waives any and all rights to offset existing and future claims against any payments due for Products sold under the Agreement or under any other agreement that Buyer and fpvblue may have and agrees to pay the amounts hereunder regardless of any claimed offset which may be asserted by Buyer or on its behalf.
11. GOVERNING LAW.
(a) ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT) BETWEEN BUYER AND FPVBLUE, its agents, employees, principals, successors, assigns, affiliates, subsidiaries, arising from or relating to the purchase of Product, these Terms, its interpretation or the breach, termination or validity thereof, fpvblue’s advertising (each, a ”Dispute”) shall be governed by the laws of the Republic of Ireland, each without regard to conflicts of law. The parties agree that the UN Convention for the International Sale of Goods will have no force or effect on this Agreement.
12. BREACH AND TERMINATION. Without prejudice to any rights or remedies fpvblue may have under the Agreement or at law, fpvblue may, by written notice to Buyer, terminate with immediate effect the Agreement, or any part thereof, without any liability whatsoever, if: (i) Buyer fails to make payment for any Products to fpvblue when due; (ii) Buyer fails to accept conforming Products supplied hereunder; (iii) a voluntary or involuntary petition in bankruptcy or winding up is filed against Buyer, any proceedings in insolvency or bankruptcy (including reorganization) are instituted against Buyer, a trustee or receiver is appointed over Buyer, any assignment is made for the benefit of creditors of Buyer; or (iv) Buyer violates or breaches any of the provisions of these Terms. Upon occurrence of any of the events referred to above under (i) through (iv), all payments to be made by Buyer under the Agreement shall become immediately due and payable. In the event of cancellation, termination or expiration of any Agreement, the following terms and conditions will survive: Sections 1, 3, 4 (as to limitations, disclaimers, and exclusions), and 8-24.
13. PRODUCT AND PRODUCTION CHANGES. fpvblue reserves the right to make at any time Product or production changes. In such event, such changes shall not on the whole negatively affect the performance characteristics of Products that have been ordered but not yet delivered.
14. FORCE MAJEURE. fpvblue party will not be deemed in default of an Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, war, civil war, insurrections, strikes, fires, floods, earthquakes, labor disputes, epidemics, governmental regulations, freight embargoes, natural disaster, act of government, or any other cause beyond its reasonable control
15. REJECTION OF OTHER TERMS, ACCEPTANCE BY AGENTS. Any specifications and any terms or conditions set forth on any document or documents issued by Buyer (including “pull order”) either before or after issuance of any offer, order confirmation, or other document by fpvblue are hereby explicitly rejected and disregarded by fpvblue, and any such document shall be wholly inapplicable to any sale made by fpvblue and shall not be binding in any way on fpvblue.
16. CONTRACT CONSTRUCTION. In the event that any provision(s) of the Agreement or these Terms shall be held invalid or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, such holding or action shall not negate the validity or enforceability of any other provisions hereof. The word “or” as used in this Agreement has the meaning equivalent to “and/or”. The terms ‘include’, ‘includes’ and ‘including’ will be deemed to be immediately followed by the phrase “without limitation.”
17. WAIVER. The failure on the part of either party to exercise, or any delay in exercising, any right or remedy shall not operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy arising therefrom preclude any other or future exercise thereof or the exercise of any other right or remedy or by any related document or by law.
18. NOTICES. All notices or communications to be given under this Agreement shall be in writing and shall be deemed delivered upon delivery in person, by facsimile communication with written confirmation, by courier service with its confirmation of delivery to the proper address, or by United States certified, registered, first class or equivalent mail with written confirmation of receipt; each as addressed to the parties at their addresses set forth on the order confirmation, and as fpvblue may update from time to time.
19. RELATIONSHIP OF PARTIES. The parties are independent contractors. No provision of these Terms will or shall be deemed to create an association, trust, partnership, joint venture or other entity or similar legal relationship between fpvblue and Buyer, or impose a trust, partnership or fiduciary duty, obligation, or liability on or with respect to such entities. Neither party will have any rights, power or authority to act or create an obligation, express or implied, on behalf of another party except as specified in these Terms.
FPVBLUE ONLINE TERMS OF SALE Ver. 1.A – Revised October 23, 2017