Hardware Sales Terms & Conditions
of November 10th, 2022
These Hardware Sales Terms (these “Terms”) govern the sale and delivery of any Auterion Hardware (the “Products” and each, a “Product”), by or on behalf of Auterion Inc. (“Auterion”) to any of its customers (each, a “Buyer”). The hardware products sold pursuant to these Terms are “goods” as defined in the California Uniform Commercial Code. Except for any operating system that is an integral part of the Product, these Terms do not cover the license of any software or the right to use any software as a service (SaaS) of Auterion that may be provided concurrently with or separately from the sale of any Product, and any such license or right to use must be acquired by Buyer subject to a separate agreement with Auterion or an authorized reseller.
No other terms or conditions shall be of any effect with respect to the sale and delivery of Products unless otherwise specifically agreed upon by Auterion in a writing duly executed by an authorized representative of Auterion. Any additional or different terms or conditions contained in Buyer’s order or response to Auterion’s confirmation shall be deemed objected to and rejected by Auterion and shall not be binding on Auterion. No general terms and conditions of Buyer shall at any time form a part of the content of any contract or agreement between the Buyer and Auterion, even if they are not expressly rejected by Auterion.
These Terms supersede any and all prior oral quotations, communications, agreements or understandings of the parties in respect of the sale and delivery of the Products and shall supersede any and all other terms and conditions contained in any order placed by Buyer otherwise communicated by Buyer.
Failure of Auterion to object to terms and conditions communicated by Buyer shall in no event be construed as an acceptance of any other terms and conditions. Any communication or conduct of Buyer which confirms an agreement for the delivery of Products by Auterion, as well as acceptance in whole or in part by Buyer of any delivery of Products from Auterion shall constitute an unqualified acceptance by Buyer of these Terms.
If Buyer finds any Term not acceptable, Buyer must so notify Auterion immediately and must reject the Products delivered under these Terms. Deviations from these Terms require the written approval of Auterion.
2. Offers, Orders and Confirmation
Auterion proposes to sell and deliver to Buyer, and Buyer proposes to purchase and accept from Auterion, the Products described on or in any order, agreement or quotation, or any combination thereof (an “Order”).
All offers made by Auterion are revocable and subject to change without notice to Buyer. Auterion shall be entitled to refuse an Order for any or no reason. No Order is binding upon Auterion until the earlier to occur of Auterion’s acceptance of the Order in writing or the delivery of the Products to the Buyer (a “Confirmed Order”). Notwithstanding any prior confirmation of an Order by Auterion, Auterion shall have no obligation to deliver Products to Buyer or otherwise perform any of its obligations set forth in the Confirmed Order or herein if Buyer is in breach of any of its obligations hereunder or the Confirmed Order.
Confirmed Orders are binding upon the Buyer and Auterion shall be free to accept or reject any proposed cancellation or modification of a Confirmed Order by the Buyer. In the event Auterion accepts a cancellation or modification of any Confirmed Order, Buyer shall bear all costs associated with such cancellation or modification, including without limitation costs of manufacture, shipping and handling of the relevant Products and, if Auterion cannot within [three months] from the date of cancellation or modification of the Confirmed Order sell the relevant Products at the same price as that which was due under the Confirmed Order, Auterion’s lost profits.
Each Confirmed Order shall be considered a separate agreement between the parties to purchase and sell Products, and any failure to deliver Products under any Confirmed Order shall have no consequences for other deliveries. The terms and conditions of a Confirmed Order and those specified herein taken together shall constitute the entire agreement between Auterion and Buyer regarding the sale and delivery of the Products pursuant to such Confirmed Order.
The price of the Products shall be as published in Auterion‘s current price list in effect at the time of the Order unless otherwise quoted in writing by Auterion. A price list is available on request. Unless otherwise agreed by Auterion in writing, all prices set forth in such price list are subject to change without prior notice.
Unless otherwise agreed in writing by Auterion, Auterion’s prices shall be FCA (Incoterms© 2020) 11959 Discovery Court Moorpark, CA 93021 United States and include standard packaging but not sales or use tax or any other similar applicable federal, state or foreign taxes, duties, levies or charges in any jurisdiction levied in relation to the Products or the delivery thereof (“Taxes”). The amount of any Taxes levied in connection with the sale of the Products to Buyer shall be for Buyer’s account and, if Auterion is responsible for the collection thereof, shall either be added to each invoice or be separately invoiced by Auterion to Buyer.
4. Payment Terms
Unless otherwise agreed in writing by Auterion, the purchase price for the Products to be delivered under a Confirmed Order and all other amounts due in connection therewith shall be due and payable prior to delivery of such Products. Buyer shall make payment in US dollars by wire transfer to the account indicated on Auterion’s invoice without any cash discount, deduction or offset whatsoever, and Auterion shall not be required to incur any expense to receive timely payment in full as required by these Terms. In no event shall any loss, damage, injury or destruction of the Products after their delivery release Buyer from its obligation to make the payments required herein.
With regard to payment of all amounts due to Auterion under any Confirmed Order, time is of the essence. If Buyer fails to make payment on or before the due date for such payment, Buyer shall pay interest to Auterion at a rate that is the lesser of one and one-half percent (1.5%) per month and the highest rate as permitted by applicable law. If Buyer fails to observe these Terms or the terms of any other agreement between Auterion and Buyer, or if Buyer becomes insolvent, Auterion may declare all balances then due and owing to Auterion due immediately, notwithstanding any agreed-upon payment periods.
If Buyer fails to pay amounts due to Auterion under any Confirmed Order, Auterion may cancel such Confirmed Order and claim as liquidated damages the price for the Products under such Confirmed Order, plus accrued interest, any shipping costs incurred, minus the net purchase price collected for the sale of the Products to a third-party.
All costs and expenses incurred by Auterion with respect to the collection of overdue payments (including, without limitation, reasonable attorney’s fees, expert fees, court costs and other expenses of litigation) shall be borne by Buyer. Every payment by Buyer shall first be applied to pay for Auterion’s cost of collection, then interest owed by Buyer, and then to the oldest outstanding claim.
Auterion may, without notice, change or withdraw extensions of credit at any time. If Auterion ceases to extend credit terms before shipment, Buyer‘s sole remedy shall be cancellation of its Order.
5. Security Interest
If Auterion extends credit to Buyer for the purchase price for any Products or any other amounts due to Auterion, Buyer hereby grants to Auterion as security for the timely payment and performance of all Buyer’s payment obligations to Auterion, a first priority security interest (the “Security Interest”) in all Products heretofore or in the future delivered to Buyer for as long as such Products shall not have been sold by Buyer in the ordinary course of business (the “Collateral”). Auterion shall be entitled to file any and all financing, continuation or similar statements under the Uniform Commercial Code, and take any and all other action necessary or desirable, in Auterion’s sole and absolute discretion, to perfect its security interest in the Collateral and to establish, continue, preserve and protect Auterion’s security interest in the Collateral. Buyer agrees to take any and all actions and provide Buyer with all information necessary to enable Auterion to perfect and enforce this security interest in all jurisdictions and vis-à-vis any of Buyer’s creditors. This security interest shall remain in force until payment in full of the entire purchase price for such Products and any other amounts due to Auterion by Buyer.
Unless otherwise agreed in writing by Auterion, all deliveries of Products shall be made FCA (Incoterms© 2020) 11959 Discovery Court Moorpark, CA 93021 United States and title to and risk of loss for the Products shall pass to Buyer upon delivery thereof at the aforementioned location.
At Buyer’s request and at its cost and expense, Auterion or its agent may make arrangements for shipping and select any commercial air, ship, motor or rail carrier or any combination thereof for the transportation of the Products and will notify Buyer thereof in the Order Confirmation. Any times or dates for delivery by Auterion are estimates and shall not be binding on Auterion. Auterion is entitled to deliver the Products to be delivered under any Confirmed Order in part and to invoice Buyer separately for such partial deliveries. In no event shall Auterion be liable for any delay in delivery. Delay in delivery of any Products shall not relieve Buyer of its obligation to accept delivery thereof.
Buyer’s failure to accept delivery of any Products pursuant to a Confirmed Order shall not release or excuse Buyer from its obligation to timely pay all amounts due in connection with such Confirmed Order. If Buyer rejects or revokes acceptance of Products or fails to pay any amounts when due or repudiates with respect to all or part of a Confirmed Order, Auterion, in its sole and absolute discretion, may extend the period of delivery by such period as Auterion may deem reasonable, or withhold or cancel delivery of any Products, or cancel any or all Confirmed Orders without any further obligations to Buyer whatsoever. In such event Buyer shall be responsible for any and all costs and expenses incurred or damages or losses suffered by Auterion in connection with any such delay notwithstanding any action or inaction by Auterion with regard to such delay.
7. Examination and Conformity to Order
Buyer shall inspect Products received within five (5) Business Days from delivery (the “Inspection Period“) of the Products and accept or, if any Product does not conform to the model number listed in the applicable Confirmed Order; or on visual inspection is reasonably determined by Buyer to be defective (“Nonconforming Product”); or is in excess of the quantities of the Products ordered under that Confirmed Order (“Excess Product”), reject only any such Nonconforming Product or Excess Product. Buyer will be deemed to have accepted the Products unless it notifies Auterion in writing of any Nonconforming Products or Excess Products during the Inspection Period and furnishes written evidence or other documentation as reasonably required by Auterion. If Buyer timely notifies Auterion of any Nonconforming Products or Excess Products, Auterion shall determine in its sole discretion whether the Products are Nonconforming Products or Excess Products. If Auterion determines that the Products are (a) Nonconforming Products or Excess Products, it shall in its sole discretion: (i) replace any Nonconforming Products with conforming Products, or (ii) refund the price for the Nonconforming Products, together with all shipping expenses incurred by Buyer in connection therewith; or (b) refund the price for the Excess Products, together with all related shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at Auterion’s expense and risk of loss, all Nonconforming Products and Excess Products to Auterion’s facility located at 11959 Discovery Court Moorpark, CA 93021 United States or such other location as indicated in writing by Auterion. If Auterion exercises its option to replace Nonconforming Products, Auterion will, after receiving Buyer’s shipment of Nonconforming Products, deliver the replaced Products FCA (Incoterms© 2020) from 11959 Discovery Court Moorpark, CA 93021 United States.
If Buyer fails to timely notify Auterion of any Nonconforming Products or Excess Products delivered, or Buyer uses, destroys or modifies any Products that Buyer knows or should have known to be Nonconforming Products or Excess Products without Auterion’s prior written consent, Buyer shall be deemed to have unconditionally accepted such Products and waived all of its claims under these Terms, and at law or in equity in respect of such Products. For purposes of these Terms, a “Business Day” is any day except holidays as defined in Sections 7 and 7.1 of the California Civil Code or in any successor legislation.
8. Limited Warranty
Auterion warrants to the Buyer of the Product directly from Auterion exclusively for integration with an unmanned aerial vehicle (“Integrated Product”) that the Product will be free of defects in material, construction or workmanship for a period of 1 year from the delivery of the Product to the Buyer, if used as intended by and following use instructions of Auterion and subject to the qualifications, limitations and exclusions set forth herein.
Auterion makes no warranty that the Products comply with applicable law, regulations or specifications in any jurisdiction. Any governmental or other approvals necessary in connection with the sale, marketing, distribution or use of an Integrated Products shall be Buyer’s sole responsibility.
If the Product was made available at no cost in connection with a development license to Auterion software or software as a service products, then Auterion makes no warranty whatsoever and the Product is made available “AS IS”.
Any software provided by Auterion and any software third parties may be subject to separate warranties and are not covered by this limited warranty.
The limited warranty will be void if (a) the Product was combined with any hardware equipment not authorized in writing by Auterion or separated from the Integrated Product into which it was originally incorporated and the resulting or remaining product was sold on or otherwise used commercially; (b) the Product was sold on by any person acquiring it as a freestanding product; (c) the Product was operated at any time using any operating system other than AuterionOS or if modifications were made to AuterionOS that were not authorized by Auterion; (d) the Product was operated at any time using any onboard software platform other than Auterion PX4 or if any modification was made to the Auterion PX4 software’s source code, except airframe configurations or parameter changes by the Original Equipment Manufacturer; (e) the Product was powered with a power module other than that delivered with the Product or one approved in writing by Auterion; (f) the Product was serviced, modified or repaired by anyone not authorized in writing by Auterion; or (g) the seal or enclosure of the Product was opened or tampered with.
This limited warranty does not cover repair or replacement necessitated by loss or damage resulting from (a) any cause other than use and operation of the Product in accordance with Auterion’s specifications and instructions under normal circumstances; (b) defects or malfunctioning of the Integrated Product unrelated to the Product; (c) improper handling, maintenance or storage, operator negligence, misuse or abuse, accident or droppage; (d) exposure of the Product to the elements; (d) an act of nature or any other cause originating from outside the Product; (e) transportation of the Product; (f) drained batteries; (g) ordinary wear and tear including cosmetic damage; (h) other actions or events beyond Auterion’s reasonable control.
If Auterion receives a written notice during the Warranty Period that a Product does not conform to the Limited Warranty, Auterion will authorize a return shipment authorization, unless it is obvious that the claimed defect is not within the scope of this limited warranty. Upon issuance of the return shipment authorization the Product shall be shipped to a location indicated by Auterion at Auterion’s cost. Upon receipt of the Product, if Auterion finds the Product defective Auterion will in its discretion repair or replace a defective Product (or the defective part) free of charge. Auterion will also pay for shipping and handling fees to return the repaired or replacement Product to the Buyer. If the Product cannot be repaired or a replacement is no longer manufactured or available Auterion will at its option replace the Product with one of equal or greater functionality. Any parts replaced by Auterion during warranty repair are the property of Auterion and will not be returned to Buyer. Auterion may use refurbished parts for repairs or replacements.
Products that no longer qualify for warranty repair may, upon prior written arrangement only, be sent to Auterion for evaluation. Upon preliminary inspection of the Product Auterion may assess an evaluation fee and payment is a precondition for further evaluation and, if possible, repair or replacement, subject to availability of parts. In its discretion Auterion may provide a quotation for the repair or replacement of the Product or, if Auterion determines that it cannot or will not repair or replace the Product, it will return the Product to the Buyer or dispose of it in safe and lawful way if so directed by the Buyer. The Buyer will be responsible for all costs of repair or replacement, testing, storage and return shipping to the Buyer or disposal. Any evaluation fee paid by the Buyer will be credited towards these costs.
Auterion will warrant repaired or replaced components for 90 days after redelivery of the Product to the Buyer.
EXCEPT WHERE PROHIBITED BY LAW, THIS LIMITED WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TO THE EXTENT SUCH WARRANTIES CANNOT BE DISCLAIMED UNDER APPLICABLE LAW, AUTERION LIMITS THE DURATION AND REMEDIES OF SUCH WARRANTIES TO THE DURATION OF THIS EXPRESS LIMITED WARRANTY.
THE REMEDIES IN THIS LIMITED WARRANTY ARE THE BUYER’S SOLE AND EXCLUSIVE REMEDIES AND AUTERION’S ENTIRE LIABILITY FOR ANY BREACH OF THIS LIMITED WARRANTY.
9. Limitation of Liability
EXCEPT AS SPECIFICALLY STATED HEREIN, AUTERION’S LIABILITY UNDER ANY CONFIRMED ORDER AND THESE TERMS SHALL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT PAID FOR THE PRODUCT THAT GAVE RISE TO BUYER’S CLAIM AGAINST AUTERION. IN NO EVENT SHALL AUTERION BE LIABLE TO BUYER FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUE, GOODWILL OR USE, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, OR IMPOSED BY STATUTE, OR OTHERWISE, EVEN IF BUYER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BUYER HEREBY ACKNOWLEDGES AND AGREES THAT THE PROVISIONS OF THESE TERMS FAIRLY ALLOCATE THE RISKS BETWEEN AUTERION AND BUYER, THAT AUTERION’S PRICING REFLECTS THIS ALLOCATION OF RISK, AND BUT FOR THIS ALLOCATION AND LIMITATION OF LIABILITY, AUTERION WOULD NOT HAVE ENTERED INTO AN AGREEMENT WITH BUYER TO SELL PRODUCTS TO BUYER.
In jurisdictions that limit the scope of or preclude limitations or exclusion of remedies or damages, or of liability, such as liability for gross negligence or willful misconduct or do not allow implied warranties to be excluded, the limitation or exclusion of warranties, remedies, damages or liability set forth above are intended to apply to the maximum extent permitted by applicable law. Buyer may also have other rights that vary by state, country or other jurisdiction.
Auterion shall not be liable for, and Buyer assumes responsibility and shall indemnify and hold Auterion harmless for, any and all claims, including without limitation claims for personal injury or property damage, resulting from the improper use or handling of the Products, alone or in combination with other products or equipment, or Buyer’s failure to properly communicate Auterion’s instructions and warnings to users of the Product.
If any provision contained in these Terms or any Confirmed Order is held by final judgment of a court of competent jurisdiction to be invalid, illegal or unenforceable, such invalid, illegal or unenforceable provision shall be severed from the remainder of these Terms or such Confirmed Order, and the remainder of these Terms or such Confirmed Order shall be enforced. In addition, the invalid, illegal or unenforceable provision shall be deemed to be automatically modified, and, as so modified, to be included in these Terms, such modification being made to the minimum extent necessary to render such provision valid, legal and enforceable.
In the event of a violation or threatened violation of Auterion’s proprietary rights, Auterion shall have the right, in addition to such other remedies as may be available pursuant to law or these Terms, to temporary or permanent injunctive relief enjoining such act or threatened act. The parties acknowledge and agree that legal remedies for such violations or threatened violations are inadequate and that Auterion would suffer irreparable harm.
Buyer may not assign its order or any right or interest therein or any other obligation arising hereunder without the prior written consent of Auterion.
Auterion’s waiver of any breach or violation of these Terms or the provisions of any Confirmed Order by Buyer shall not be construed as a waiver of any other present or future breach or breaches by Buyer.
The parties hereto are independent contractors and nothing in these Terms will be construed as creating a joint venture, partnership, employment or agency relationship between the parties.
12. Applicable Law and Jurisdiction
These Terms and the Confirmed Orders shall be governed by and construed in accordance with the laws of the State of California excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and without giving effect to any choice or conflict of law provision or rule that would defer to or cause the application of the substantive laws of any jurisdiction other than California.
Each Party hereby consents to personal jurisdiction in the State of California and agrees that any and all dispute arising out of or in connection with these Terms or any Order shall exclusively be submitted to the federal or state courts with jurisdiction in Ventura County, California. Each Party hereby waives any and all claims, pleas or defenses (including without limitation a plea for forum non conveniens) that would permit such Party to seek the jurisdiction of any courts or arbitration tribunals other than those set forth in the preceding sentence.
EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THESE TERMS.