Terms and Conditions of Sale
This Terms and Conditions of Sale (“Terms and Conditions”) applies to the undersigned’s purchase of one or more unmanned aerial vehicle products, software licenses, and/or related services (collectively, the “Products”), as designated on the Precision Capture, Inc. (“Precision”) work order (“Order”) submitted by the customer (“Customer”).
1. SCOPE. The terms and conditions set forth herein apply to all Orders accepted by PRECISION. Every Order placed with PRECISION is conditioned on and confirms Customer’s acceptance of these Terms and Conditions. PRECISION agrees to furnish the Products described in Customer’s Order in accordance with these Terms and Conditions and the Purchase Order or the Scope of Work, as the case may be.
2. ACCEPTANCE. All Orders submitted by Customer are subject to final acceptance by PRECISION as evidenced by a Purchase Order (in the case of goods or software) or a Scope of Work (in the case of services) signed by an authorized representative of PRECISION. PRECISION’s acceptance of an Order is contingent upon approval of the Customer’s credit (Customer expressly authorizes PRECISION to perform a credit check). Products will be deemed accepted without any claim by Customer upon receipt. PRECISION reserves the right to correct any clerical errors contained in an Order.
3. DELIVERY. PRECISION’s delivery dates are approximate. PRECISION will maintain delivery schedules as closely as possible, but dates are estimates only. PRECISION will not be liable for delays in delivery or other defaults in performance of this order, including due to events or causes beyond PRECISION’s control. PRECISION assumes no liability for loss or consequential damages due to delivery delays. Customer may only cancel the order if PRECISION fails to deliver the Products within thirty (30) days from the scheduled delivery date, and such delay is due in no part to Customer.
4. PRICING. Project pricing shall be as stated in the Purchase Order or the Scope of Work.
Any PRECISION price quotes may be revoked by PRECISION prior to acceptance by Customer and shall automatically be revoked if not accepted by Customer within thirty (30) days from the date of quotation.
5. PAYMENT TERMS. The payment schedule shall be as described in the Purchase Order or Scope of Work. Unless stated otherwise therein, and subject to the terms described in Section 6 below, payment terms shall be net twenty (20) days from date of PRECISION’s invoice. All payments must be in immediately available U.S. currency. No discount will be granted for advance payment. PRECISION shall be entitled to set-off, offset and deduction for prior debt balances in Customer’s account. Customer shall not withhold or set-off from any amounts due to PRECISION for any amounts claimed to be owed by PRECISION to the Customer for any reason whatsoever.
6. CHANGE IN PAYMENT TERMS. PRECISION has the continuing right to review the Customer’s credit and, based on such review, change Customer’s payment terms, accelerate payment, require satisfactory security (such as, but not limited to, a confirmed, irrevocable letter of credit acceptable to PRECISION), or a guarantee of prompt payment, prior to delivery of the Products to Customer. If Customer shall be or becomes insolvent, or admits in writing Customer’s inability to pay Customer’s debts as they mature, or if Customer shall make an assignment with creditors or if there are instituted by or against Customer proceedings in bankruptcy or under any insolvency laws or for reorganization, receivership or dissolution, PRECISION may terminate the agreement between the parties at any time and without notice.
7. PAYMENT DEFAULTS. If payment in full is not made on or before the specified due date, the Customer agrees to pay service charges on all overdue sums owing to PRECISION at the rate of one percent (1%) per month until the date on which payment is made in full. Subject to applicable law, PRECISION may make appropriate filings to secure payment hereunder, including and all statutory liens, mechanic’s and material men’s liens, and UCC financing statements.
8. REASONABLE ATTORNEY FEES. If suit or other proceedings shall be brought against the Customer for recovery of the purchase price or any unpaid balance or the breach by Customer of any term of the agreement between PRECISION and Customer, Customer shall pay to PRECISION, in addition to any damages provided by law, reasonable attorneys’ fees and costs of collection.
9. TAXES. Prices do not include domestic or foreign sales, use, excise or similar taxes. Consequently, in addition to prices specified herein, the amount of any present or future sales, use, excise or other general or specific tax, import or export tariffs, duties or penalties or other governmental charges fixed or imposed by any lawful authority(s) upon or applicable to the production, sale, shipment, delivery or use of the Products sold hereunder shall be added to the price and be paid by the Customer. If such tax is paid by PRECISION, Customer shall reimburse PRECISION. If applicable, Customer shall timely provide PRECISION with a tax exemption certificate acceptable to the taxing authorities.
10. CANCELLATION. Except due to delivery delay as described in Section 3, Customer may not cancel an Order once accepted by PRECISION.
11. DISCLAIMER OF WARRANTIES. ALL GOODS AND SERVICES ARE DELIVERED WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTIBILITY AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
12. LIMITATION OF LIABILITY. PRECISION SHALL NOT BE RESPONSIBLE, OBLIGATED, OR LIABLE FOR DAMAGES, INCLUDING, BUT NOT LIMITED TO, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY OR USE OF THE PRODUCTS, EITHER SINGLY OR IN COMBINATION WITH OTHER PRODUCTS. THE MAXIMUM LIABILITY OF PRECISION TO CUSTOMER SHALL BE THE AMOUNT OF AGGREGATE FEES PAID BY CUSTOMER TO PRECISION IN THE TWELVE MONTHS PRECEDING ANY CUSTOMER CLAIM.
13. CUSTOMER RESPONSIBILITY. Customer agrees PRECISION is not responsible for the results of Customer’s use of the Products and/or any work performed in the field by Customer.
14. INDEMNIFICATION. Customer agrees to indemnify and hold PRECISION, its officers, directors, members, managers, agents and employees, harmless from and against any and all any and all causes of action, claims, damages, charges, complaints, liabilities, obligations, costs, losses, debts, and expenses (including attorneys’ fees and costs) suffered by them which directly or indirectly result from, relate to, arise out of, or are attributable to (a) any inaccuracy in any representation or breach of any warranty contained herein by Customer, (b) any failure by Customer to perform or observe, or to have performed or observed, in full, any covenant, agreement or condition to be performed or observed by it under this Agreement, (c) Customer’s use of the Products, including any loss, damage or injury suffered by a third party caused by any negligence or deliberate act by the Customer, (d) any breach of any law applicable to the Products, and/or (e) Customer’s sale, transfer, or distribution of the Products.
15. CUSTOMER REPRESENTATIONS. The Customer represents and warrants to PRECISION that: (a) there are no legal restrictions preventing it from purchasing or using the Products; (b) it will carefully read and comply with all manufacturer restrictions and directions regarding the use and operation of the Products, (c) it will truthfully and completely complete and timely submit to PRECISION the Addendum, and (d) it will act lawfully and will comply with any applicable licences, laws, regulations, industry codes of conduct, health and safety requirements and U.S. federal and state standards applicable to the Products.
16. ADDENDUM. The Customer acknowledges that one or more of the Products may be subject to local, state, national, and/or international laws and regulations governing the use, operation, and/or transfer of the Products. The Customer therefore agrees, upon the request by PRECISION at any time, to sign the Addendum to Terms and Conditions to Sale (the “Addendum”), which Addendum is incorporated herein and made a part hereof.
17. LICENSE. Any license(s) sold to Customer is between the Customer and the licensor and are subject to the terms and conditions stated in such license(s).
18. SPECIFICATIONS. The Customer acknowledges that differences may exist between electronic files delivered and the printed hard-copy documents. In the event of a conflict between the hard-copy documents, and the electronic files prepared by PRECISION, the hard –copy documents shall govern. The Customer also recognizes that information stored on electronic media may not be one hundred percent compatible with Customer’s own computer system. PRECISION shall not be liable or responsible for any claims arising from incompatibility, readability or translation of the electronic files.
19. USE OF DATA. The Customer acknowledges that PRECISION is the author of all drawings, models, compilations and other work product created by PRECISION for Customer’s use, whether in hardcopy or electronic format (collectively, the “PRECISION Files”), and agrees that PRECISION shall own all property rights related thereto, including all common law, statutory and other rights, including copyrights. PRECISION hereby grants Customer a non-transferable license to utilize the PRECISION Files solely in connection with the construction project specified in the Work Order (the “Project”). The rights licensed to Customer are for the internal use of the Customer only and may not be assigned, transferred or sublicensed. The Customer agrees to not alter, modify or to use the PRECISION Files, in whole or in part, for any purpose other than the Project. The Customer shall treat as confidential the PRECISION Files, including the price, size and design. Customer shall not disclose the PRECISION Files to any party, including, without limitation, other contractors working on the Project, without the prior written consent of PRECISION.
20. NOTICES. Any notice to PRECISION shall be sent to PRECISION PRODUCTS, LLC, 1400 Hugh Avenue, Louisville, Kentucky 40213. Any notice to Customer shall be sent to the address stated in the Order.
21. ENTIRE AGREEMENT. These terms and conditions, together with the Order and any other documents referenced herein, contains the complete agreement between the parties hereto and supersedes any prior understanding, agreements or representations by or between the parties, written or oral, which may have related to the subject matter hereof in any way. Any terms or conditions contained in quotes, purchase orders or other documents which are contrary or inconsistent with those contained in this agreement shall be of no force or effect. The terms and conditions set forth above contain all the representations, stipulations, warranties, agreements and understandings with respect to the subject matter of the agreement between the Customer and PRECISION, and its execution has not been induced by any representation, stipulation, warranty, agreement or understanding (including any course of prior dealings between the parties hereto) of any kind other than those set forth above.
22. MODIFICATION. No waiver, modification, or addition to these terms and conditions, or any assignment of Customer’s rights or obligations hereunder shall be valid or binding on PRECISION unless in writing and signed by an authorized PRECISION representative. Changes to the Work Order shall only be binding on PRECISION if a Change Order is signed by an authorized PRECISION representative.
23. GENERAL. The agreement between the Customer and PRECISION and the subject matter connected with the performance thereof shall be construed in accordance with and governed by the laws of the Commonwealth of Kentucky, as if it were executed and performed entirely within Kentucky and shall be construed to be between merchants. Except as expressly provided to the contrary in writing, the provisions herein are between Customer and PRECISION and are for the benefit of the parties hereto and not for any other person. No waiver by PRECISION of any breach of any provision of these terms and conditions will constitute a waiver of any other breach. A party is not liable for failure to perform the party’s obligations hereunder if such failure is as a result of Acts of God (including flood, earthquake, or other natural disasters), war, invasion, act of foreign enemies, hostilities, civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, riots, government sanction, blockage, or embargo.