The Buyer may place orders (“Order(s)”) with Reftek Systems Inc. for Reftek Systems Inc. products (“Products”) and all such Orders will be governed solely by the terms and conditions contained herein, unless otherwise agreed to in writing by an authorized representative of Reftek Systems Inc.. Reftek Systems Inc. shall not be deemed to have waived the terms and conditions contained herein if it fails to object to provisions appearing on, incorporated by reference in, or attached to any Buyer order form, and those provisions are hereby expressly rejected. No contrary or additional terms or conditions contained in any Buyer order form shall apply unless agreed to in writing by an authorized representative of Reftek Systems Inc.. Reftek Systems Inc. reserves the right to reject any Order submitted to it by Buyer.
Delivery shall be made within the time specified on Buyer’s Order or in accordance with Reftek Systems Inc.’s quoted lead time and monthly delivery rate, whichever is later. Transportation charges shall be prepaid and Buyer shall reimburse Reftek Systems Inc. upon receipt of an invoice for such charges. Reftek Systems Inc. shall have the right to make early, accelerated and/or partial shipments in advance of the contractual delivery schedule, in its sole and absolute discretion.
The Buyer shall inspect and accept, or reject Products delivered pursuant to the Order immediately after Buyer takes custody of such Products. In the event the Products do not comply with the applicable Reftek Systems Inc. drawings or specifications, the Buyer shall notify Reftek Systems Inc. of such nonconformance and give Reftek Systems Inc. a reasonable opportunity to correct any such nonconformance. The Buyer shall be deemed to have accepted any Products delivered hereunder and to have waived any such nonconformance in the event Reftek Systems Inc. does not receive notification that the Products delivered hereunder do not comply with Reftek Systems Inc.’s drawings or specifications, within fifteen (15) days after the Buyer takes custody of such Products. Unless otherwise agreed, Buyer shall have no right to conduct inspection at Reftek Systems Inc.’s facility. In the event Reftek Systems Inc. agrees that Buyer may inspect Products at Reftek Systems Inc.’s facility, any such inspection shall be conducted with reasonable prior notice by Buyer to Reftek Systems Inc. and at reasonable times, on a non- interference basis, and such inspection shall not include the right to establish mandatory inspection points or enter proprietary or competition-sensitive areas of Reftek Systems Inc.’s facility.
Reftek Systems Inc. at all times reserves the right, and is entitled in its sole discretion, to make changes, additions or improvements to the Products being delivered under an Order without liability or any obligation to incorporate such changes, additions or improvements into any item or product manufactured, sold or delivered prior to incorporation of the change, addition or improvement.
5. Prices and Payments
Prices and payments will be in quoted dollars, and payment shall be made in invoiced currency. Invoice terms are net 30 days unless otherwise specified. Prices quoted are believed to be accurate; however, Reftek Systems Inc. reserves the right to correct any inadvertent errors in these prices prior to acceptance of the Order. Reftek Systems Inc. reserves the right to modify or withdraw credit terms at any time without notice and to require guarantees, security or payment in advance of the amount of credit involved. In the event payments are not made in a timely manner, Reftek Systems Inc. may, in addition to all other remedies provided at law, either: (1) declare Buyer’s performance in breach and terminate the Order for default; (2) repossess the goods for which payment has not been made; (3) withhold future shipments under the Order until delinquent payments are made; (4) deliver future shipments under the Order on a cash with Order or cash in advance basis even after the delinquency is cured; (5) charge interest on the delinquency at a rate of 1- 1/2% per month or the maximum rate permitted by law, if lower, for each month or part thereof of delinquency in payment plus applicable storage charges, or inventory carrying charges; or (6) recover all costs of collection including reasonable attorney’s fees; and (7) at Reftek Systems Inc.’s option combine any of the above rights and remedies as provided by law.
All amounts that Buyer owes Reftek Systems Inc. under an Order shall be due and payable according to the terms of the Order. Buyer is prohibited from and shall not set off such amounts or any portion thereof, whether or not liquidated, against sums which Buyer asserts are due it, or its affiliates, under other transactions with Reftek Systems Inc., or its affiliates.
As used in this Section “Nonconformance” means a failure to comply with or failure to operate due to noncompliance with applicable Reftek Systems Inc. drawings or having defects in workmanship or material. Normal wear and tear and the need for regular overhaul and periodic maintenance shall not constitute a Nonconformance. Reftek Systems Inc. warrants that at time of delivery to Buyer, its Products will comply with applicable Reftek Systems Inc. drawings and will be free from defects in workmanship and material. This warranty shall benefit the Buyer, its successors, and assigns. This warranty is valid for twelve (12) months after Reftek Systems Inc.’s shipment of the Product. The warranty period for Reftek Systems Inc.’s repair or replacement of a failed Product only, covered by the warranty, shall be the unexpired portion of the original warranty or 6 months after shipment of the repaired or replaced Product, whichever is longer. Buyer must notify Reftek Systems Inc. in writing of the Nonconformance of any Product within the warranty period and return the Product to Reftek Systems Inc. within thirty (30) days after such discovery. Prior to return of the Product to Reftek Systems Inc., Buyer must obtain a Return Material Authorization (RMA) from Reftek Systems Inc.. Reftek Systems Inc. reserves the right to return to Buyer any Product received without a valid RMA. In the event Reftek Systems Inc. is unable to confirm Buyer’s reported Nonconformance, Buyer agrees to pay Reftek Systems Inc. an Evaluation/No Defects Found Charge, the amount of which shall be as specified in Reftek Systems Inc.’s Return Material Authorization. Reftek Systems Inc.’s obligation and Buyer’s remedy under this warranty is limited to either repair or replacement, at Reftek Systems Inc.’s election, of any Product Nonconformance. Reftek Systems Inc. agrees to assume round trip transportation costs for a nonconforming Product in an amount not to exceed normal shipping charges to the nearest facility designated herein for warranty repair of products delivered under an Order. The risk of loss or damage to all Products in transit shall be borne by the party initiating the transportation of such Products. Reftek Systems Inc. shall not be liable under this warranty if the Product has been exposed or subjected to:
- Any maintenance, repair, installation, handling, transportation, storage, operation or use which is improper or otherwise not in compliance with Reftek Systems Inc.’s instruction; or
- Any alteration, modification or repair by anyone other than Reftek Systems Inc. or those specifically authorized by Reftek Systems Inc.; or
- Any accident, contamination, foreign object damage, abuse, neglect or negligence after delivery to Buyer; or
- Any damage precipitated by failure of a Reftek Systems Inc. supplied Product not under warranty or by any product not supplied by Reftek Systems Inc..
THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE WHICH ARE HEREBY EXPRESSLY DISCLAIMED. IN NO EVENT SHALL Reftek Systems Inc. BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND. NO EXTENSION OF THIS WARRANTY SHALL BE BINDING UPON Reftek Systems Inc. UNLESS SET FORTH IN WRITING AND SIGNED BY Reftek Systems Inc.’S AUTHORIZED REPRESENTATIVE.
8. Excusable Delay
Reftek Systems Inc. shall be excused from delays in delivery and performance of other contractual obligations under an Order caused by acts or omissions that are beyond the reasonable control and without the fault or negligence of Reftek Systems Inc., including but not limited to Government embargoes, blockades, seizure or freeze of assets, delays or refusals to grant an export license or the suspension or revocation thereof, or any other acts of any Government, fires, floods, severe weather conditions, or any other acts of God, quarantines, labor strikes or lockouts, riots, strife, insurrection, civil disobedience, war, material shortages or delays in deliveries to Reftek Systems Inc. by third parties. If the excusable delay circumstances extend for six months, either party may, at its option, terminate the Order without penalty or liability and without being deemed in default or in breach thereof.
Buyer has the right to cancel any portion of an Order affected by a default of Reftek Systems Inc. or any insolvency or suspension of Reftek Systems Inc.’s operations or any petition filed or proceeding commenced by or against Reftek Systems Inc. under any provincial, state or federal law relating to bankruptcy, arrangement, reorganization, receivership or assignment for the benefit of creditors.
Except as otherwise specifically agreed in writing by Reftek Systems Inc., any dispute relating to an Order placed by a Buyer incorporated in Canada which is not resolved by the parties shall be adjudicated by any court of competent jurisdiction. For Orders placed by a Buyer incorporated outside of Canada, the parties shall resort to binding arbitration under mutually agreed procedures.
11. Applicable Law
This Agreement shall be interpreted in accordance with the laws of Nova Scotia and Canada, exclusive of any choice of law provisions. The Reftek Systems Inc. and Buyer expressly agree to exclude from this Agreement the United Nations Convention on Contracts for the International Sale of Goods, 1980, and any successor thereto.
Unless otherwise agreed, Buyer shall be responsible for compliance with the export control laws and regulations of Canada, and when required by such laws and regulations shall obtain validated export and re-export licenses required for goods, services and technical data delivered under the Order. Reftek Systems Inc. shall not be liable to Buyer for any failure to provide goods, services or technical data as a result of any following Canadian Government actions: (1) refusal to grant export or re-export license; (2) cancellation of export or re-export license; or (3) any subsequent interpretation of Canadian export laws and regulations, after the date of the Order, that limits or has a material adverse effect on the cost of Reftek Systems Inc.’s performance on the Order.
13. Limitation of Liability
Reftek Systems Inc.’s liability on any claim for loss or damage arising out of, connected with, or resulting from an Order, or from the performance or breach thereof, or from the manufacture, sale, delivery, resale, repair or use of any Product covered by or furnished under an Order shall in no case exceed the price allocable to the Product or part thereof which gives rise to the claim, except as provided in the paragraph entitled “Patent Indemnity.” In no event shall Reftek Systems Inc. be liable for special, incidental or consequential damages. Except as herein expressly provided to the contrary, the provisions of the Order are for the benefit of the parties to the Order and not for the benefit of any other person.
14. Nondisclosure and Non-use of Reftek Systems Inc. Information
Buyer agrees that it will not use Reftek Systems Inc.’s data for the manufacture or procurement of Products which are the subject of an Order or any similar products, or cause said products to be manufactured by or procured from any other source, or reproduce said data and information or otherwise appropriate them without the written authorization of the Reftek Systems Inc.. Buyer agrees that it will not disclose or make available to any third party any of Reftek Systems Inc.’s data or other information pertaining to the Order, which is proprietary to Reftek Systems Inc., without obtaining Reftek Systems Inc.’s prior written consent.
15. Patent Indemnity
Except insofar as an Order calls for products pursuant to Buyer’s designs, drawings or specifications, Reftek Systems Inc. agrees to pay the amount of any final judgment against Buyer resulting from a suit claiming that any Products manufactured or furnished hereunder, by reason of their manufacture, sale or use, infringes any Canadian patent which has issued at date of contract, and Buyer’s reasonable costs and expenses in defense of such suit if Reftek Systems Inc. does not undertake the defense thereof, provided Reftek Systems Inc. is promptly notified of the threat of commencement of such suit and is offered full and exclusive control to conduct the defense or settlement thereof.
Reftek Systems Inc.’s indemnity shall not apply where infringement would not have occurred from the normal use for which the Products were designed. No responsibility is assumed for actual or alleged infringement of any foreign patent. Reftek Systems Inc.’s liability for damages hereunder is limited to those computed solely on the value of any Products sold to Buyer. In no event shall Reftek Systems Inc. be liable for consequential damages or costs applicable thereto. In the event of any claim that a Product furnished hereunder infringes any Canadian patent, Reftek Systems Inc. may at its option and expense: (a) procure for Buyer the right to continue using the Product, or (b) replace or modify the Product so that it becomes non-infringing, or (c) grant Buyer a credit for such Product, less a reasonable depreciation for use, damage, and obsolescence upon its return to Reftek Systems Inc.. Buyer agrees to pay all costs and expenses incurred by Reftek Systems Inc. in its defense and the amount of any judgment against Reftek Systems Inc., in any suit or proceeding against Reftek Systems Inc. based upon a claim of infringement, resulting solely from the Buyer combining any Product furnished hereunder with any item not manufactured or furnished by Reftek Systems Inc. or from the sale or use of any such combination by Buyer. Reftek Systems Inc. shall also indemnify Buyer’s Buyers and agents for such infringement, if and to the extent that Buyer has agreed so to indemnify them, but to no greater extent than Reftek Systems Inc. has indemnified Buyer herein and under the same conditions as set forth herein. In the event any product to be furnished under an Order is to be made in accordance with drawings, samples or manufacturing specifications designated by Buyer and is not the design of Reftek Systems Inc., Buyer agrees to defend, indemnify and hold Reftek Systems Inc. harmless to the same extent and subject to the same requirements as set forth in Reftek Systems Inc.’s obligation to Buyer as above. The above is in lieu of any other indemnity or warranty, express or implied by Reftek Systems Inc., with respect to intellectual property (patents, trade secret, mask works, trademarks, copyrights, or the like).
16. Software License
In the event that any software or software documentation is provided to Buyer by Reftek Systems Inc. in any form whatsoever under an Order and no software license agreement governing this sale has been signed between Buyer and Reftek Systems Inc., Buyer agrees to accept the terms and conditions stated below effective the date of the first delivery hereunder:
- Subject to the terms and conditions herein, Reftek Systems Inc. grants to Buyer a nonexclusive, nontransferable license to use the software or software documentation provided herein: (i) in the course of the normal operation in or with Products which are installed, or are intended to be installed, on aircraft, (ii) in the analysis or the formatting of reports using data from such Products or, (iii) on Reftek Systems Inc. or non-Reftek Systems Inc. products that are used to test, maintain, download, or process information compiled by Products.
- Making copies of software or documentation except for one copy for archive purposes is prohibited unless specifically authorized by Reftek Systems Inc. in writing. Should such copying be authorized, Buyer will reproduce and include all Reftek Systems Inc. proprietary and copyright notices and other legends in the same manner that Reftek Systems Inc. provides such notices and legends, both in and on every copy of licensed software and documentation and in any form.
- The software license and rights granted by Reftek Systems Inc. to Buyer hereunder are personal to Buyer. The licensed software and documentation may not be sub-licensed, transferred, or loaned to any other party without Reftek Systems Inc.’s prior express written consent, except that Buyer may transfer the licensed software and documentation in conjunction with the resale of any flight equipment or Reftek Systems Inc. supplied test equipment in which the licensed software and documentation is installed or with which it is used. Such permission to transfer is contingent upon the resale or transfer of Buyer’s agreement to use and protect the confidentiality of the licensed software and documentation under the same or similar terms as those set forth in this software license. Buyer will, however, notify Reftek Systems Inc. in writing of the transfer of the licensed software and documentation.
- Buyer agrees to utilize all licensed software and documentation only as authorized herein. Buyer may not either itself or with the assistance of others, make modifications to the licensed software and documentation, including, but not limited to, translating, decompiling, disassembling or reverse assembling, reverse engineering, creating derivative or merged works, or performing any other operation on licensed software and documentation to recover any other operation on licensed software and documentation to recover any portion of the program listing, object code or source code or any information contained therein.
- Buyer agrees to accept and retain licensed software and documentation in confidence. Buyer agrees to take appropriate action by instruction, agreement or otherwise with Buyer’s employees, or agents or other persons who are permitted access to licensed software and documentation as follows to inform said employees, agents or other persons who may come into contact with it of the confidential nature of licensed software and documentation; and to satisfy its obligations under this software license with respect to use, copying, and protection and security of licensed software and documentation.
- This software license is effective as of the date of first delivery hereunder and shall continue until terminated by Buyer for any reason whatsoever upon thirty (30) days prior written notice to Reftek Systems Inc., provided Buyer ceases using and either returns or destroys Reftek Systems Inc. software and documentation; or by Reftek Systems Inc., if Buyer does not comply with any of the terms and conditions of this software license and Buyer fails to remedy such failure within thirty (30) days after having received notice from Reftek Systems Inc. of such failure.
- Notwithstanding the warranties provided elsewhere herein, Buyer acknowledges that licensed software and documentation may be aircraft or sensor specific and, as such, may require reasonable adjustment or refinement to suit Buyer’s specific requirements. Buyer shall provide reasonable aid to Reftek Systems Inc. in accomplishing such adjustments and refinements. Such reasonable adjustments or refinements shall commence on the date of delivery and be provided by Reftek Systems Inc. to Buyer for a period not to exceed ninety (90) days unless otherwise provided for in writing.
- Buyer agrees that it will not use the licensed software and documentation in the performance of a contract, or subcontract, with any Government in a manner so as to affect Reftek Systems Inc.’s rights to licensed software and documentation. If Buyer desires to use the licensed software or documentation in the performance of a contract or subcontract with a Government, prior to such use, Buyer shall consult with Reftek Systems Inc. as to the procedures and use of restrictive markings required to protect the ownership interest of Reftek Systems Inc. and receive written confirmation from Reftek Systems Inc. of same.
- This license and sale is subject to the laws and regulations, and other administrative acts, now or hereinafter in effect, of Canada and other governments and their departments and agencies relative to the exportation and/or re-exportation of licensed software and documentation. Buyer acknowledges that it will be responsible for compliance as necessary with such laws, regulations and administrative acts.
- Reftek Systems Inc. agrees to use reasonable efforts to secure any licenses or permits as may now or hereafter be required by the Canadian Government in connection with the performance of Reftek Systems Inc. obligations under an Order, but this will not be deemed to require any performance on the part of Reftek Systems Inc. which cannot lawfully be done pursuant to the laws, regulations and acts referred to above.
17. Special Tooling and Data
Unless otherwise agreed in writing, all material, software, data processes, equipment, facilities and special tooling, which term includes but is not limited to jigs, dies, fixtures, molds, patterns, special taps, special gages, special test equipment, other special equipment and manufacturing aids and replacements thereof, used in the manufacture of products covered by an Order, shall be and remain the property of Reftek Systems Inc.. Reftek Systems Inc. retains all rights, title and interest in drawings, engineering instructions, specifications, and all other written data, if any, furnished with the products.
The prices quoted herein do not include sums necessary to cover any taxes or duties including but not limited to Federal, Provincial, Municipal excise, sales or use taxes or import duties upon the production, sales, distribution, or delivery of goods or furnishing of services hereunder. Any taxes or duties that are due and owing hereunder shall be paid by the Buyer. Accordingly, Reftek Systems Inc. reserves the right to revise its price after the execution of an Order between the parties to include any and all taxes or duties that may become due hereunder and Reftek Systems Inc. may invoice Buyer for said additional amount. This clause shall survive the acceptance and complete performance of an Order by the parties herein.
Neither Reftek Systems Inc. or the Buyer shall assign an Order or any portion thereof without the advance written consent of the other, which consent shall not be unreasonably withheld. The nonassigning party shall not have any obligation to an assignee of the assigning party unless such consent is obtained.
Failure by Reftek Systems Inc. to assert all or any of its rights upon any breach of an Order shall not be deemed a waiver of such rights either with respect to such breach or any subsequent breach, nor shall any waiver be implied from the acceptance of any payment or service. No waiver of any right shall extend to or affect any other right Reftek Systems Inc. may possess, nor shall such waiver extend to any subsequent similar or dissimilar breach.
If any provision of these Conditions of Sale is determined to be illegal, invalid, or unenforceable, for any reason, then such provision shall be deemed stricken for purpose of the dispute in question, and all other provisions shall remain in full force and effect.