MSI DEFENSE SOLUTIONS, LLC – TERMS AND CONDITIONS OF SALE
ARTICLE 1
GENERAL TERMS FOR ALL SALES
The following terms and conditions in this Article 1 apply to the sale of services (the “Services”) and goods (including deliverables provided in connection with any Services, such goods and deliverables being “Products”) by MSI Defense Solutions, LLC (“MSI”):
1.1 Agreement.
These Terms and Conditions of Sale (“Terms”) along with all statements of work, quotations or purchase orders, in each case that have been accepted in writing by MSI and the person, entity or organization identified therein as purchasing Goods or Services from MSI (the “Buyer” and, upon such written acceptance by both MSI and Buyer, an “Order”) comprise the entire agreement between MSI and Buyer regarding the sale and purchase of Products and Services listed therein (the “Agreement”), hereby superseding any previous understandings or agreements regarding such sale and purchase. Each accepted Order shall, along with these Terms, constitute a separate Agreement. In the event of any conflict between a provision in these Terms and a provision in any Order, the provision in these Terms shall govern. An Agreement or any Order may only be amended or modified by a writing signed by both MSI and Buyer. No course of dealing, usage of trade or course of performance shall be used to supplement, amend or interpret any provision in any Agreement. MSI hereby rejects any terms and conditions set forth in any Buyer form, including a purchase order, or any other correspondence from Buyer, that are in addition to, inconsistent with, or in conflict with an Agreement. The U.N. Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to the Order or an Agreement.
1.2 Scope; Price. MSI shall perform such Services and sell such Products as are set forth in an Order and Buyer shall pay the prices for such Products and Services stated in an Such prices are exclusive of federal, state, local and foreign sales, use, excise, value added, import, export and other taxes or duties, which Buyer agrees to pay. Buyer shall pay each invoice, without holdback or offset. Unless set forth otherwise in an Order, Buyer will reimburse MSI for out of pocket expenses reasonably incurred in the performance of Services pursuant to an Agreement.
1.3 Invoicing; Payment. MSI shall invoice Buyer according to the invoice schedule set forth in an Order. If an Order does not contain an invoicing schedule, then MSI shall invoice Buyer for Goods upon shipment thereof and for Services and associated expenses monthly in arrears. MSI reserves the right to require 50% pre-payment on all commercial orders. Buyer will pay each invoice, without setoff or discount, upon receipt. Invoices shall be deemed past due if payment is not received within thirty(30) days after the invoice date. For any past due invoice, MSI may (in addition other remedies available hereunder or at law or equity including 1.5 % monthly interest) terminate the applicable Agreement or any Order for Buyer’s breach or suspend Services/refuse to ship Products to Buyer.
1.4 Intellectual Property.
(a) MSI retains all rights, title and interests (including, without limitation, all intellectual property rights) in and to all inventions, ideas, discoveries, copyrightable works, software, algorithms, drawings, information, specifications, photographs, processes, apparatus and designs, whether patentable or unpatentable, conceived, invented or developed by MSI (i) before any Agreement or during any Agreement but not in the performance hereof and (ii) unless expressly set forth otherwise in an Order, in the performance of an Agreement.
(b) If MSI provides any documents, drawings, algorithms, analyses, studies, specifications or other materials to Buyer for which Buyer does not own all rights, title and interest therein pursuant to any Order, upon full payment thereof by Buyer MSI grants to Buyer a nonexclusive, nontransferable, nonsublicensable license to use such items solely for Buyer’s internal purposes.
(c) To the extent that Buyer provides MSI any documents, drawings, algorithms, analyses, studies, specifications or other materials or information, Buyer hereby represents that it has the right to provide such items and information and Buyer hereby grants MSI a nonexclusive right to use, reproduce, distribute and modify such items and information as necessary for MSI’s performance of an Agreement.
(d) MSI reserves all intellectual property and other rights in the Products and Services (and related software) that are not expressly granted in an Agreement.
1.5 Confidentiality.
(a) As used herein, “Confidential Information” means any information disclosed or provided (in any form, including disclosure by access) by MSI or Buyer (in either case, the “Disclosing Party”) to the other (the “Receiving Party”) that is marked as “confidential” or “proprietary” or that is by its nature such that a reasonable person in Buyer’s or MSI’s industries would regard it as being confidential or proprietary. Confidential Information shall not include any information that: (i) was publicly available at the time of disclosure; (ii) subsequently becomes available to the public, except by the wrongful disclosure by the Receiving Party; (iii) was in the Receiving Party’s possession prior to receipt thereof from the Disclosing Party; (iv) is received by a Receiving Party from a third party without any obligation of confidentiality with respect to such information; (v) is developed independently by the Receiving Party without use or benefit of any information provided by the Disclosing Party; or (vi) is disclosed to a government or judicial body pursuant to any judicial or governmental requirement or order; provided, however, that the Receiving Party notifies Disclosing Party in writing of such required disclosure as much in advance as practicable under the circumstances and cooperates, without charge or fee, with the Disclosing Party to limit the scope of or prevent such disclosure.
(b) During the term of an Agreement and thereafter, the Receiving Party will: (i) treat the Disclosing Party’s Confidential Information as confidential and take reasonable precautions to prevent unauthorized disclosure or use of such Confidential Information; (ii) not disclose the Disclosing Party’s Confidential Information to any third party, except that MSI may disclose Buyer’s Confidential Information to subcontractors and suppliers as reasonably necessary and pursuant to a written agreement obligating such subcontractors and suppliers to maintain the confidentiality of such Confidential Information to at least the same extent as required herein; (iii) not use the Disclosing Party’s Confidential Information except for the purpose of providing Products or Services or otherwise fulfilling obligations under an Agreement; and (iv) promptly return the Disclosing Party’s Confidential Information upon request of the Disclosing Party.
(c) Buyer and MSI acknowledge that any violation of the forgoing may result in irreparable injury to the Disclosing Party and thus the Disclosing Party shall be entitled, in addition to any other remedies it may have at law or in equity, to seek a restraining order, injunction, specific performance or other similar remedy in order to enforce the foregoing without the posting of a bond.
(d) For the avoidance of doubt, if Buyer and MSI have previously entered into a separate agreement regarding the confidentiality of information, these Terms shall not supersede such separate confidentiality agreement and both these Terms and such separate confidentiality agreement shall continue in effect according to their respective terms.
1.6 No Publicity. Buyer shall not advertise, publish or otherwise publicly disclose that MSI has provided Products or Services to Buyer without MSI’s prior written consent.
1.7 Limitation of Liability; Exclusion of IN NO EVENT SHALL MSI HAVE ANY LIABILITY TO BUYER OR ANY THIRD PARTY FOR ANY (A) LOST PROFITS, LOSS OF USE, LOSS OF DATA, LOSS OF PRODUCTION OR ANY CONSEQUENTIAL,INDIRECT, EXEMPLARY OR INCIDENTAL DAMAGES OR (B) ANY DIRECT DAMAGES IN EXCESS OF THE AMOUNTS PAID OR PAYABLE BY BUYER UNDER THE APPLICABLE ORDER FOR WHICH SUCH LIABILITY ARISES. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 2.1(B) AND 3.2, MSI MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS OR SERVICES OR ANY RELATED SOFTWARE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, AND MSI HEREBY DISCLAIMS ALL SUCH OTHER IMPLIED AND OTHER WARRANTIES.
1.8 Force Majeure. MSI shall not be liable for any loss, damage or delay arising out of its failure (or that of its subcontractors) to perform an Agreement due to causes beyond its reasonable control, including without limitation, acts of God, acts of civil or military authority, fires, strikes, floods, epidemics, pandemics, quarantine restrictions, war, riots, acts of terrorism, delays in transportation, or transportation embargoes. In the event of such delay, performance date(s) will be extended as reasonably necessary to compensate for the delay.
1.9 Reservation of Rights. MSI expressly reserves all rights and remedies that are available to it at law or equity including without limitation, rights and remedies set forth in the North Carolina Uniform Commercial Code.
1.10 Waiver. The failure of MSI to enforce at any time, for any period of time, any of the provisions of an Agreement or any Order shall not constitute a waiver of such provisions nor of MSI’s right to enforce each and every provision. Buyer acknowledges and agrees that MSI’s rights under an Agreement are cumulative and not elective or limiting.
1.11 Applicable Law; Exclusive Venue. Each Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, without regard to its conflict of law principles. Buyer agrees that any suit filed by it against MSI relating in any way to an Agreement or the Products or Services shall be filed exclusivity in the state or federal courts located in Charlotte, North Carolina. MSI agrees that any suit filed by it against Buyer relating in any way to an Agreement or the Products or Services shall be filed exclusivity in the state or federal courts located in the city in the United States in which Buyer maintains a U.S. headquarters or, if Buyer does not maintain a headquarters in the United States, then in the state or federal courts in Charlotte, North Carolina. MSI and Buyer each hereby irrevocably consent to the exclusive jurisdiction of such courts for such suits.
1.12 Assignments; Enforceability Severability. Buyer will not assign its rights in any Agreement or portion thereof without MSI’s prior written consent. Any unauthorized assignment is void. If all or part of any provision of an Agreement shall be declared unlawful, void or unenforceable the rights and obligations of Buyer and MSI shall be reduced only to the extent necessary to remove the illegality and these Terms shall be enforced to the maximum extent possible. MSI may, subject to Section 1.5, engage subcontractors for the performance of the
1.13 Notices. All notices required or permitted to be given in connection with an Agreement shall be in writing and shall be hand-delivered or delivered by nationally recognized overnight courier. Notices will be effective upon delivery.
1.14 Termination. Either MSI or Buyer may terminate an Agreement (and all Orders hereunder) if the other breaches a provision of the applicable Agreement and fails to cure such breach within thirty (30) days, or for payment breaches, within ten (10) days, after receiving written notice of such breach from the non-breaching party.
1.15 Buyer’s Materials. If Buyer provides or instructs MSI to use any (i) design, materials, drawings, software, specifications, construction criteria or other information or materials furnished or specified by Buyer, or (ii) products supplied by, made by or sourced from Buyer or other manufacturers or vendors specified by Buyer, then (A) Buyer represents that it has the authority to provide the foregoing to MSI; (B) Buyer hereby authorizes MSI to use the foregoing as reasonably necessary to provide Products and Services to Buyer; (C) MSI shall not be responsible or liable for any losses, defects, claims, warranty failures or other liabilities relating to MSI’s reliance of use thereof, and (D) Buyer will indemnify, defend and hold harmless MSI against any claim arising out of MSI’s use or reliance thereof.
1.16 Compliance with Laws. Buyer and MSI shall comply with all applicable laws and regulations regarding the performance of each Agreement and the use of the Products and Services. Without limiting the foregoing, Buyer shall comply with all export control and foreign corrupt practice act laws and regulations with respect to its use and distribution of the Products and Services.
1.17 Schedule. MSI shall use commercially reasonable efforts to deliver Products and perform Services in material conformance with any schedule set forth in an Order; provided, however, that any such schedule shall be an estimate only and shall not be binding on MSI.
1.18 Product Software. If any Product sold by MSI contains software or MSI provides Buyer with software for loading onto any such Product, MSI hereby grants Buyer a non-exclusive, non-transferable, non- sublicenseable license to use the object code version of such software solely in conjunction with the Product on which such software is installed or directed by MSI to be installed. The foregoing license shall continue for so long as the applicable Agreement is not terminated by MSI because of Buyer’s uncured breach Buyer will not disclose, disassemble, decompile, reverse engineer, or otherwise modify such software (except for modifications or updates as may be provided by MSI, which shall be included in the foregoing license). Except for the foregoing limited license MSI and its licensors reserve all other rights, title and interests (including all intellectual property rights) in such software.
1.19 Government Rights. Unless expressly set forth in an Order, no government contract clauses, specifications or regulations apply to the Products or Services, or otherwise to any Agreement. If any Order is issued under a U.S. Government Contract, then the clauses at Federal Acquisition Regulation (FAR) 52.244-6(c)(1) shall be incorporated into such Order by reference. Additionally, any technical data delivered under such Order is subject to an agreement by the Government and its prime contractor that such technical data is a commercial item as that term is defined in FAR 2.101, and the use, duplication or disclosure by the U.S. Government of such technical data is subject these Terms and the applicable Agreement pursuant to the restrictions set forth in FAR 211.
ARTICLE 2
SPECIFIC TERMS FOR THE PURCHASE OF PRODUCTS
The following terms and conditions in this Article 2 apply to any Products sold by MSI.
2.1 Acceptance; Product Limited
(a) Unless a specific acceptance process is set forth in an Order, Buyer shall be deemed to have accepted Products at delivery unless it notifies MSI in writing that any Products fail to comply with the requirements of an Agreement within thirty (30) days after delivery and furnishes such written evidence or other documentation as reasonably required by MSI. MSI will promptly repair or replace any Product properly rejected by Buyer. Notwithstanding the foregoing, any use of a Product by Buyer for any purpose after receipt thereof shall constitute acceptance of that Product by Buyer.
(b) MSI warrants to the original purchaser that for a period of one year after delivery, the Products will be free from defects in materials and workmanship when properly installed, maintained and used under normal operating conditions for the purposes for which such Products were designed; provided, however, that (i) if MSI so requests, Buyer will return the alleged nonconforming Product to MSI for inspection, properly packed and at Buyer’s sole cost and expense, and (ii) MSI inspects and confirms the validity of the warranty claim. Buyer shall not return any Product to MSI without MSI’s prior written consent. In the event of a warranty claim that is accepted by MSI, then MSI shall replace or repair the alleged nonconforming Product. Repair or replacement of an alleged nonconforming Product shall not reset the warranty period for such Product. The foregoing warranty shall be void with respect to: any Products modified by parties other than MSI; alleged defects not reported to MSI in writing within the foregoing 1-year warranty period and within thirty (30) days after Buyer’s discovery thereof; and alleged defects caused in any way by normal wear and tear, accidents, abuse, misuse, neglect, improper installation, improper storage or issues with electrical or hydraulic power. The foregoing limited warranty is not transferable from the original purchaser.
(c) THE REPAIR OR REPLACEMENT REMEDY SET FORTH IN SECTIONS 2.1(A) AND 2.1(B) SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND MSI’S ENTIRE LIABILITY FOR ANY REJECTION OF PRODUCTS OR ANY BREACH OF THE WARRANTY SET FORTH IN SECTION 2.1(B).
2.2 Delivery; Shipping; Returns.
(a) Unless otherwise provided in the Order, the Products will be delivered within a reasonable time after MSI’s acceptance of the Order. MSI will use commercially reasonable efforts to deliver Products in accordance with the mutually agreed upon delivery schedule identified in the Order; provided, however, that MSI shall not be liable for any delays, loss or damage in transit or for any delays caused in whole or in part by Buyer.
(b) Unless otherwise provided in the Order, MSI shall ship the Products to Buyer’s premises using MSI’s standard methods for packaging and shipping such Products.
(c) MSI may, in its sole discretion and without liability, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale.
(d) The quantity of any installment of Products as recorded by MSI on dispatch from MSI’s premises is conclusive evidence of the quantity received by Buyer upon delivery unless Buyer can provide conclusive evidence proving otherwise.
(e) Unless otherwise stated in the Order, delivery shall be FOB MSI’s premises, Mooresville, North Carolina, Title and risk of loss passes to Buyer upon delivery of the Products to the carrier at MSI’s premises, except title to intellectual property rights associated with the Products, which remain with MSI and its suppliers unless expressly stated otherwise in an Order.
(f) Buyer will comply with MSI’s instructions regarding returns of defective Products. Convenience returns are not permitted.
(g) If in providing Products pursuant to an Order it is necessary for MSI to remove any parts or components of, or other portions of, vehicles or other items owned by Buyer and provided to MSI (collectively, “Removed Items”), then unless prohibited by law, after removal MSI may destroy, recycle, refurbish, rebuild, recycle, sell or otherwise dispose of Removed Items unless an Order expressly states that Removed Items will be returned to Buyer. If an Order expressly states that Removed Items are to be returned to Buyer, then Buyer shall (at its sole expense) arrange shipment of the Removed Items from MSI to Buyer’s designated location within thirty (30) days after the Order invoice. In the event that such shipment has not occurred within such thirty (30) day period, MSI may either (i) arrange shipment of the Removed Items to Buyer and invoice Buyer for all shipping costs or (ii) destroy, recycle, refurbish, rebuild, recycle, sell or otherwise dispose of the Removed Items.
ARTICLE 3
SPECIFIC TERMS FOR THE PURCHASE OF SERVICES
The following terms and conditions in this Article 3 apply to any Services provided by MSI to Buyer.
3.1 Independent Contractor. MSI is an independent contractor and is not an employee or agent of Buyer. MSI shall provide any Services supplied hereunder at such a place and in such time and manner as MSI deems Buyer shall not have the right to incur any obligations whatsoever on behalf of MSI. Payments to be made to MSI for Services shall not be subject to withholding for income tax, social security or unemployment compensation.
3.2 Services Limited Warranty. MSI warrants that for ninety (90) days after performance thereof the Services will be performed in a good and workmanlike manner. MSI will, as Buyer’s exclusive remedy and MSI exclusive obligation for the failure of any Services to satisfy the foregoing warranty, re-perform defective Services of which Buyer provides written notice to MSI thirty (30) days after performance thereof.