These Terms of Sale (“Terms”) govern the sale of Products, Services, and the license of Software by Overwatch Systems, Ltd. d/b/a Textron Systems Geospatial Solutions and its subsidiaries and affiliates (“Textron”). The following terms shall have the meaning indicated below in these Terms:
- “Customer” means the person or entity that places an order subject to these Terms.
- “Product” means the products specifically set forth in the order, including any standard hardware sold or standard Software licensed under these Terms.
- “Software” means one or more computer programs and related documentation.
- “Service” means the site support services and training described in the order or any standard support service to support Products, or Software updates and maintenance.
- “Specifications” means technical information or specifications about Products published by Textron and in effect on the date of the order.
A Textron quote (“Quote”), website offering, similar order form, these Terms, any Statement of Work or description of deliverables (“SOW”) from Textron for any Service, any and all Textron end user license agreements (“EULA”) accompanying Products or Software, and Textron’s warranty are collectively referred to herein as the “Terms.”
1. SALE AND DELIVERY
- Textron’s acceptance of Customer’s order is expressly limited to, and conditioned on, these Terms. Textron objects to and rejects any terms or conditions in any communication or purchase order from Customer that are in addition to or different from those contained in these Terms. The fulfillment of Customer’s order and the invoicing of Customer will not constitute acceptance of any of Customer’s terms and conditions or serve to modify these Terms. Orders are governed by the applicable trade term specified on the Quote or if no separate Quote has been provided the applicable term shall be INCOTERMS 2020 EXW Textron’s facility.
- The prices for the Products and Services shall be those prices listed on Textron’s website at the time of Customer’s order. Prices exclude any applicable sales, value added or similar tax payable by Customer.
- Unless otherwise indicated in a Quote, prices include shipping and handling charges.
- Product returns are subject to Textron approval and applicable charges.
- For Software acceptance occurs upon delivery and acknowledgement of the EULA. For Products with installation included in the purchase price, acceptance occurs when the Product passes Textron’s installation and test procedures. If Customer schedules or delays installation by Textron more than thirty (30) days after delivery, acceptance of the Product will occur on the thirty- first (31st) day after delivery.
- Textron shall have the right, without the prior consent of Buyer, to make changes in the Products or Software and to substitute equivalent parts, modules, accessories or materials in and for such Products and parts, provided that such changes or substitutions shall not have a materially adverse effect on the form, fit, or function of such Product.
- Textron may discontinue performance or suspend Customer’s license if Customer fails to pay any sum due, or fails to perform under this or any other Textron agreement if, after ten (10) days written notice, the failure has not been cured.
- Customer will be liable for all expenses, including legal fees, relating to the collection of past due amounts or Textron’s enforcement of these Terms. If any payment owed to Textron is not paid when due, it will bear interest from the due date until paid at a rate of the lesser of a) 1.5% per month or b) the maximum amount allowable under the applicable law.
- All Software is licensed to Customer pursuant to the applicable EULA included with that Software. Copies of each EULA are available at _______________________ as documentation provided with the Software, or upon request. If the Software documentation does not include license terms, Textron grants Customer a worldwide, non-exclusive, non-transferable, revocable (if any applicable license fees are not paid or Customer otherwise violates these Terms), limited license to use one copy of the Software on one machine or instrument for internal purposes or, if applicable, Textron grants Customer the license as otherwise agreed. Software may contain third-party software with separate license terms that may apply and take precedence to the extent Customer’s use exceeds the license granted herein.
- When Software is delivered electronically, such delivery will be deemed to have occurred when (i) Textron has notified Customer of, and has given Customer access to, a website from where the Software can be downloaded, and (ii) Textron has given Customer any and all license key(s) needed to download, install, and/or activate the Software. When Software is installed by Textron, delivery and acceptance will be in accordance with Section 1(e).
- Except as authorized by Textron in writing or as permitted by law, Customer will not reverse engineer, reverse compile, or reverse assemble Software, modify or translate Software, or copy Software onto any public or distributed network.
- Notwithstanding anything to the contrary in these Terms, all Software and Service deliverables are licensed and not sold, and the use of terms such as “sale” and “purchase” in connection with those items will be understood as a reference to licensing of those items.
- For all Service deliverables that do not constitute Software, Textron grants to Customer a limited, non-exclusive, non-transferable, perpetual, worldwide license to copy and use such items only for Customer’s internal business purposes.
- As between Textron and Customer, Textron is and shall remain the exclusive owner of all intellectual property rights in or related to any of the Products, Services, or Software, including retaining ownership of the copyright to the copies of any documentation or Product manuals delivered with the Products or specified in the Customer’s order and delivered to Customer.
- For any Product manuals delivered by Textron to Customer, Customer may use and make copies of such Product manuals solely in connection with Customer’s use of the Products, Services, or Software. Textron shall own the copyright to any translation or copies of any Product manuals made by Customer and Customer agrees to and hereby assigns the copyright to any translation or copies of the Product manuals to Textron.
- Textron warrants the Textron hardware Product against defects in materials and workmanship and that the Product will conform to Specifications (“Limited Warranty”). Textron warrants that Textron owned standard Software substantially conforms to Specifications (“Software Warranty”).
- The warranty period for the Limited Warranty and the Software Warranty is ninety (90) days after acceptance (“Warranty Period”).
- If Customer discovers any non-conformance or defect during the Warranty Period, Customer shall (i) notify Textron in writing of such defect or non-conformance within the Warranty period and specify the extent that the Product contains a defect or is in non-conformance with the Limited Warranty or the Software Warranty, (ii) comply with Textron’s instruction (if any) as to immediate action required to protect the Product, and (iii) return the allegedly defective or non-conforming Products or components thereof to Textron at Customer’s expense, which Products or components thereof must be received by Textron within thirty (30) days of receiving the notice from Customer.
- Customer will pay shipping expenses for return of such Product to Textron. Unless otherwise agreed by the parties in writing, Customer shall be solely responsible for customs documentation to be properly prepared and customs procedures to be completely fulfilled in accordance with the applicable legislation before proceeding with Product returns to the extent they are allowed and specified in these Terms.
- If Textron receives notice of a defect or non-conformance during the Warranty Period, Textron will, at its option, repair or replace the affected Product. Textron shall have sole responsibility with determining whether a defect or non-conformance exists in the Products or components thereof. If Textron determines that the Products are subject to the Limited Warranty or Software Warranty, Textron, at its sole discretion, may repair or replace the affected Products. If Textron is unable to correct the defect, at its sole discretion, Textron may replace the defective Product or component, or may provide a reasonable credit to Buyer. If Textron determines that the Products are subject to the Limited Warranty or Software Warranty, Textron will pay expenses for shipment of the repaired or replacement Product.
- Damage or failure to function of a Product is excluded from the Limited Warranty and Software Warranty if such damage or failure is caused, in whole or in part, by maintenance, operator error, abuse, war conditions, or failure to strictly adhere to recommended maintenance and operating procedures.
- Customer agrees and accepts that Textron provides no warranty in connection with (i) any Services or manuals and (ii) the loss or damage to, or replacement of Product due to accident or misuse regardless of cause.
- BUYER AGREES AND ACCEPTS THAT THE WARRANTY GRANTED TO BUYER UNDER THIS ARTICLE PROVIDES THE SOLE AND EXCLUSIVE REMEDIES FOR SUCH DEFECTS AND IS EXPRESSLY IN LIEU OF, AND BUYER HEREBY WAIVES, ALL OTHER REMEDIES, CONDITIONS AND WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY OTHER OBLIGATION OR LIABILITY, RIGHT, CLAIM OR REMEDY WHATSOEVER OF SELLER WHETHER IN CONTRACT OR IN TORT, INCLUDING PRODUCT LIABILITIES BASED UPON STRICT LIABILITY, NEGLIGENCE OR IMPLIED WARRANTY IN LAW, OR OTHERWISE, FOR ANY DEFECT, DEFICIENCY, FAILURE, MALFUNCTIONING OR FAILURE TO FUNCTION OF ANY OF THE PRODUCTS, SERVICES, SPARES OR MANUALS.
- BUYER ASSUMES ALL RISK AND LIABILITY WHATSOEVER NOT EXPRESSLY ASSUMED BY SELLER IN SAID LIMITED WARRANTY OR SOFTWARE WARRANTY.
4.INTELLECTUAL PROPERTY CLAIMS
- Textron agrees to defend, indemnify, and hold harmless Customer from and against any claims, damages, losses, costs, and expenses relating to any claim, lawsuit, or action by a third party that any Product, component part, Software, or manual (“Infringing Product”) provided by Textron directly infringes any U.S. patent, copyright, or trademark of a third party under the laws of the United States (“IP Claim”). If such an IP Claim is made, Customer agrees to permit Textron, in its sole discretion: 1) to procure necessary rights to enable Customer to continue to use the Infringing Products, or 2) to modify or replace such Infringing Products to eliminate the infringement. If Textron determines that neither of these alternatives is commercially reasonable, on Textron's written request, Customer agrees to return the Infringing Products to Textron, and Textron agrees to provide Buyer a credit equal to the depreciated value for the Infringing Product determined in accordance with generally accepted accounting principles. However, Textron has no obligation of indemnification under this Section for any claim of infringement caused by Customer's design or modification of the Products or their combination, operation, or use with any product, data, or apparatus not specified or provided by Textron, provided that such claim would be avoided absent such Customer modification or by the combination, operation, or use with Products,data, or apparatus specified or provided by Textron.
- Customer shall promptly notify Textron of any IP Claim, permit Textron to defend such IP Claim, and provide reasonable cooperation in the defense of such IP Claim. In exchange for this indemnification, Customer agrees that Textron’s liability to Customer arising directly or indirectly from any such IP Claim shall be limited pursuant to paragraph a of this Clause. THIS SECTION STATES SELLER’S ENTIRE OBLIGATION WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
- Textron and Customer agree to indemnify, hold harmless, and defend each other, and their respective officers, employees, agents, subcontractors, and insurers, against the costs of and claims for any damages to property or injury to persons, including death, directly caused by the negligence or intentional misconduct of the indemnifying party, its agents, employees, or subcontractors (“Claim”). As a condition of this indemnification, the party seeking indemnification shall promptly notify the other party of any Claim, permit the other party to defend such Claim, and provide reasonable cooperation in the defense of such Claim.
6.LIMITATION OF LIABILITY AND REMEDIES
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL TEXTRON, ITS SUBCONTRACTORS, OR SUPPLIERS BE LIABLE TO CUSTOMER UNDER THIS AGREEMENT FOR ANY INCIDENTAL, INDIRECT, MULTIPLE OR PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGE DEEMED TO BE OF AN INDIRECT OR CONSEQUENTIAL NATURE, TO INCLUDE LOST PROFIT, LOST BUSINESS OPPORTUNITY AND RE- PROCUREMENT COSTS, ARISING OUT OF OR RELATED TO ITS PERFORMANCE UNDER THIS CONTRACT, WHETHER BASED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE AND WHETHER GROUNDED IN TORT, CONTRACT, CIVIL LAW, OR OTHER THEORIES OF LIABILITY, INCLUDING STRICT LIABILITY. TEXTRON’S LIABILITY TO CUSTOMER ARISING OUT OF OR UNDER THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES PURSUANT TO ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, OR OTHER LEGAL OR EQUITABLE THEORY, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL AGREEMENT PRICE. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS LIMITATION OF LIABILITY REFLECTS AN ALLOCATION OF RISK AND THAT THE TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT IN THE ABSENCE OF SUCH LIMITATION.
- CUSTOMER AGREES THAT TEXTRON SHALL NOT BE LIABLE AND HEREBY AGREES TO INDEMNIFY AND HOLD AND SAVE HARMLESS SELLER AND ITS OFFICERS, EMPLOYEES, AGENTS AND INSURERS AGAINST ANY AND ALL LIABILITIES, CLAIMS, ACTIONS AND CAUSES OF ACTION WHATSOEVER BY ANY THIRD PARTY(/IES) AND ALL EXPENSES IN CONNECTION THEREWITH (INCLUDING REASONABLE ATTORNEYS FEES) ARISING DIRECTLY OR INDIRECTLY OUT OF OR IN CONNECTION WITH THE USE OF THE PRODUCTS BY CUSTOMER OR CUSTOMER’S EMPLOYEES, AGENTS, OR SUBCONTRACTORS.
- The remedies in these Terms are Customer’s sole and exclusive remedies.
7. EXPORT CONTROL
- The transactions contemplated under these Terms, or any amendments hereto, are subject to the requirements of numerous laws and regulations, including, but not limited to the U.S. International Traffic in Arms Regulations and the U.S. Export Administration Regulations (which, among other requirements, necessitate obtaining approvals and/or export and import licenses) (collectively “U.S. approvals”) and may be subject to the laws and regulations of other nations. Customer agrees to comply with all applicable U.S. export control laws and regulations, specifically including but not limited to the requirements of the Arms Export Control Act, 22 U.S.C.2751-2794, the International Traffic in Arms Regulations (ITAR), 22 C.F.R. 120 et seq., and the Export Administration Regulations, 15 C.F.R. 730-774; including the requirement for obtaining any export license or agreement, if applicable. Without limiting the foregoing, Customer agrees that it will not transfer any export controlled item, data, or services, to include transfer to foreign persons employed by or associated with, or under contract to Customer, without the authority of an export license, agreement, or applicable exemption or exception.
- Customer expressly agrees that it assumes full responsibility for obtaining any and all required export authorizations from all applicable government authorities prior to exporting, re-exporting or transferring Products, technology or technical data and for complying with all applicable laws and regulations relating to any such transfer or transaction. Customer shall not sell or transfer Products, technology or technical data to any entity designated or identified by the U.S. Government as a restricted person or included on any U.S. Government-maintained restricted person list, including, but not limited to, (i) the Specially Designated Nationals and Blocked Persons List, (ii) the Foreign Sanctions Evaders List, (iii) the Sectoral Sanctions Identification List, (iv) the Entity List, (v) the Denied Persons List, and (vi) the Unverified List (collectively, “US Restricted Lists”). Further information on these and other applicable lists can be found at www.treasury.gov or www.bis.doc.gov.
- Textron may, in its sole discretion, suspend performance or cancel all or part of the order if Customer is designated on US Restricted Lists or does not comply with the provisions of this section and may, in its sole discretion, refuse to perform any post-sale services with respect to the Product (including, but not limited to, any repair or replacement under warranty) if such activities would involve in any way, an entity on any US Restricted Lists. Textron may, in its sole discretion, require Customer to provide an end user certificate and/or an export license prior to Textron’s delivery of any Product or item to Customer.
- By Customer purchasing the Products, Services, or Software from Textron, Customer represents and warrants that it is not in violation of any applicable export laws by purchasing or having access to the Products, Services, or Software and assumes all responsibility with such compliance.
- Textron may collect personal data in connection with these Terms. Textron will process such personal data as set forth in Textron’s Customer Privacy Statement, available at ___________________[BS1] Textron will not sell, rent or lease personal data to others.
- Terms for Service are available at ___________________________`[BS2] , upon request, or as otherwise indicated in the Quote.
- The parties agree to comply with applicable laws and regulations. Textron may suspend performance if Customer is in violation of applicable laws or regulations.
- A party is excused from and not liable for performance of its obligations under these Terms for any occurrence beyond its reasonable control and without its fault or negligence including, but not limited to, acts of God (such as fires, floods, storms, earthquakes, hurricanes or other natural disasters), acts of the public enemy (such as civil war, rebellion, revolution or terrorist activities), regulations, acts or restraints of a government in either its sovereign or contractual capacity, epidemics, quarantine restrictions, strikes, lockouts, interruption or failure of utilities, or acts or omissions of common carriers.
- Use, distribution or disclosure of Products by the U.S Government is subject to DFARS 227.7202-3 (Rights in Commercial Computer Software), DFARS 252.227-7015 (Technical Data – Commercial Items), and FAR 52.227-19 (Commercial Computer Software- Restricted Rights).
- Disputes arising in connection with these Terms will be governed by the laws of the State of Delaware, without regard to its conflict of law provisions. All such disputes shall be brought in the federal or state courts within the State of Delaware, and the parties hereby consent to the exclusive jurisdiction of such courts for such matters.
- To the extent that any provision or a portion of any provision of these Terms is determined to be illegal or unenforceable, the remainder of these Terms will remain in full force and effect.
- The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms.
- Customer is not authorized by these Terms to resell Products to any United States Federal, state, or local entity, including under such arrangements as a direct General Services Administration (“GSA”) Schedule contract or similar state or federal schedule contract.
- These Terms and any supplemental terms applicable to the order constitute the entire agreement between Textron and Customer, and supersede any previous communications, representations or agreements between the parties, whether oral or written, regarding transactions hereunder.
- Textron may assign or transfer any of its rights or obligations under these Terms upon notice in connection with a merger, reorganization, transfer, sale of assets or product lines, demerger or spin-off transaction or change of control or ownership of Textron, or its permitted successive assignees or transferees. Customer may not transfer or assign these Terms without Textron’s prior written consent.