DESCRIPTION
This is an Agreement between Agile Space Industries, Inc. (“Agile”) and Vendor (collectively, the “Parties,” or each individually, a “Party”). The Purchase Order (“PO”) to which these General Provisions are incorporated by reference constitutes an offer by Agile Space Industries, Inc. to purchase the products or materials (“Goods”) and services (“Services”) described in the PO (together, the Goods and Services are the “Work”) from the Vendor identified in the PO (the “Vendor”).
AGILE SPACE INDUSTRIES
GENERAL TERMS AND CONDITIONS
LAST UPDATED: SEPTEMBER 12, 2023
1. CONSENT TO TERMS
Vendor has read and understands this Agreement and agrees that Vendor’s acceptance of a PO, quote, payment, or performance for the Work shall constitute Vendor’s acceptance of and consent to these terms and conditions. Agile objects to and rejects any terms and conditions that add to, modify, or differ from those set forth below in any document provided by Vendor without Agile’s written prior approval. These Terms and Condition are only superseded by Terms and Conditions agreed by both parties which specifically consider negation or alteration of these terms by a Master Service Agreement or mutually agreed Terms and Conditions. Any applicable Federal Acquisition Regulations required for the order will be dually attached to the purchase order as an amendment of requirements to the order.
2. TIME IS OF THE ESSENCE
Time is of the essence in the performance of this Agreement and failure to perform on time, if unexcused, shall be considered a material breach under this Agreement. Vendor shall immediately provide written notice to Agile of all material details regarding any actual or potential cause or event that threatens the timely performance of this Agreement, and promptly notify Agile of the actions being taken to overcome or minimize the delay, provide Agile with a written recovery schedule, and unless Vendor is excused from timely performance by Force Majeure, ship via air or other expediated routing, without additional cost to Agile, to avoid or minimize delay to the maximum extent possible.
3. PAYMENT
The price for the Work is the price stated on the PO. Unless otherwise specified on the PO, price includes all packaging, transportation costs to delivery location identified by Agile, insurance, customs duties, fees and applicable taxes, including but not limited to, all sales use or excise taxes; and Vendor shall be solely responsible for paying such costs. No increase in price is effective due to increased material, labor or transportation costs or otherwise without written pre-approval by Agile. Vendor shall submit an invoice to Agile upon delivery of Work and Agile will pay all undisputed amounts for accepted Work within thirty (30) days after receipt of invoice.
4. SUBCONTRACTORS
Vendor shall not subcontract the supply of any materials, goods, or services related to the Work without Agile’s prior written consent. In the event that Agile consents to a subcontractor, Vendor shall remain fully responsible for any and all performance under this Agreement including meeting quality standards.
5. QUALITY STANDARDS AND WARRANTIES
Vendor shall maintain quality standards and quality management systems that are acceptable and appropriate for the items supplied and shall comply with either regulatory or general industry standards. Items supplied shall meet the requirements in the applicable technical specifications and documentation (drawings, specifications, standards, etc.). It shall be the sole responsibility of Vendor to ensure that technical specifications regarding materials, methods, form, fitness, and function are met, whether the items have been manufactured by Vendor or its subcontractors. If no specific requirements are stated, good industry and craftsman-like practice shall be observed. Vendor shall only purchase products to be delivered or incorporated as Goods from the original component manufacturer (OCM) or through an authorized distributor chain. Vendor must provide, at Agile’s request, documentation that authenticates traceability of components to that applicable OCM or other supporting documentation to ensure product safety, identification and traceability. Vendor must obtain, at Vendor’s cost, all necessary permits, licenses, and permissions, including but not limited to any third party software licenses, so that Agile may use, prepare derivative works, make, sell, offer for sale, import, and otherwise fully exploit the Work and Developments.
Vendor shall promptly provide written notice to Agile with all material facts of any of the following occurrences or events likely to give rise to any of the following occurrences: (i) failure by Vendor to perform any of its obligations under this Agreement; (ii) any delay in delivery of Work; (iii) any defects, quality issues, or changes relating to the Work; (iv) any change in the control of Vendor or in Vendor’s authorized representative; (v) any deficiency in Vendor’s specifications, samples, prototypes, or tests; (vi) information provided by Agile to Vendor has been compromised or exposed to unauthorized access, inadvertent disclosure, known misuse, loss, or alteration other than is required to perform the Work or meet terms of this Agreement; (vii) if Vendor becomes aware that it has furnished Agile counterfeit or suspect counterfeit materials, or (viii) any failure by Vendor or its subcontractors or common carrier to comply with law. Vendor must provide an explanation in the notification to Agile and, if there are tasks that Vendor believes are beyond the scope of the PO, additional costs and efforts associated with the new tasks. Agile will not pay for any additional expenses, costs, or services that Vendor incurs but which Agile has not approved in advance.
In addition to Vendor’s standard manufacturer or product warranties, Vendor represents and warrants to Agile that all Work will: (i) be free from any defects in workmanship, material and design; (ii) conform to applicable specifications, drawings, designs, samples, and other requirements as specified by Agile; (iii) be fit for their intended purpose and operate as intended; (iv) be merchantable; (v) comply with all applicable laws, codes and regulations as published by any national or statewide association or group or federal agency; (vi) be held in good title by Vendor and be free and clear of all liens, security interests or other encumbrances; (vii) not incorporate counterfeit or suspect counterfeit materials and that only authentic materials are used in Work to be delivered to Agile under this Agreement; and (viii) not infringe or misappropriate any third party’s patent or intellectual property rights. These warranties survive delivery, inspection, final acceptance, payment or termination of this Agreement and are in addition to any other warranty provided by law or equity; (ix) retain all pertinent records to work required for a minimum of 15 years with disposition authorized after that period unless notified for further retention. (x) reinforce with all employees the importance of safe and ethical behavior that drives quality and ensuring conformance of all parts with validation that parts or supplied materials do not use or contain components that are counterfeit parts or materials.
All information provided by Agile to Vendor is provided on an AS-IS basis with no warranty whatsoever and Agile makes no warranties, express or implied, regarding its accuracy, completeness, or performance. AGILE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
6. INSPECTION
All Work will be subject to inspection, monitoring, and testing (“Inspection”) by Agile at reasonable times and places. Agile will have the right to inspect work in process. Vendor will provide information and access to facilities necessary for a safe and convenient Inspection at no additional charge. No Inspection will relieve Vendor of any of its obligations to furnish all Work in accordance with the specifications, or requirements of this Agreement. Vendor will permit Agile access to visit and audit Vendor’s books and records related to the Work, including Vendor’s written policies and procedures relating to quality control, to assure compliance with this Agreement. Any such audit of books and records will be at Agile’s expense.
7. ACCEPTANCE AND REJECTION
Agile shall accept or reject Work within a reasonable time after receipt. Neither receipt nor payment shall constitute final acceptance. Agile will not be obligated to accept substitutions, untimely deliveries, deliveries in quantities other than those ordered by Agile, or non-conforming Work. Acceptance by Agile of substitutions, untimely deliveries, partial deliveries, or non-conforming Work shall not waive the delivery schedule or other requirements of this Agreement. If Vendor delivers Goods thirty (30) days or more prior to their scheduled delivery date, without prior written authorization, Agile may, at its option, (i) refuse to accept Goods and return them at Vendor’s expense, or (ii) accept Goods but defer payment until the time when payment would have been due had Goods been shipped according to schedule. If Vendor delivers non-conforming Work, Agile may (i) receive all or part of the Work without limiting rights available to Agile under this Agreement or law; (ii) return Work for credit or refund; (iii) require Vendor to promptly repair, correct or replace Work at the location specified by Agile and at Vendor’s cost; (iv) correct, or have a third party correct Work; or (v) perform, or have a third party perform replacement Work and apply such purchases against Vendor’s quantity requirements under this Agreement. All returns of rejected Work are at Vendor’s risk and expense. Vendor shall not re-deliver corrected or rejected Work without disclosing the corrective action, and Agile may require at Vendor’s expense, an inspection report from a third-party inspector acceptable to Agile. Final acceptance of Work occurs upon either the expiration of sixty (60) days after receipt if Agile does not reject Work or the express written acceptance from Agile, whichever occurs first.
8. IP OWNERSHIP
Vendor shall timely notify Agile of all inventions, improvements, discoveries, methods, developments, works, brands, software, and works of authorship that are created, made, conceived, or reduced to practice by Vendor or under Vendor’s direction in connection with the Foreground IP, Vendor’s obligations under this Agreement, or which relate to the subject matter of this Agreement (the “Developments”). Agile is the sole owner of all right, title, and interest in all completed and incomplete Work and Developments including but not limited to designs, drawings, prototypes, 3-D prints, molds, brands, images, writings, memoranda, know-how, data, discoveries, inventions, innovations, and improvements of every kind and description made, conceived, developed or reduced to practice by or for Agile in the performance of Vendor’s obligations under this Agreement (the “Foreground IP”). Agile may seek patent protection in the Work or Developments at Agile’s sole discretion and expense. Improvements or inventions made by Vendor in connection with the Foreground IP, its obligations under this Agreement, or which relate to the subject matter of this Agreement must be timely disclosed to Agile, and Agile may seek patent protection at Agile’s sole discretion and expense. Any works of authorship made by or for the Vendor in the performance of its obligations under this Agreement are a work for hire and, upon creation and fixation in any tangible medium of expression, are the exclusive property of Agile. Vendor agrees to assign, and hereby does assign, all right, title, and interest, including but not limited to copyrights and all patent rights in any and all countries, in and to all of the Foreground IP to Agile, and will execute all documents that Agile may request to confirm the assignment from Vendor. Vendor, its heirs, assigns, employees, and delegates will perform all lawful acts requested by Agile to perfect Agile’s title in the Foreground IP, and where applicable, to enable Agile or its nominee to obtain and maintain copyright, mask work, patent, trademark, or other legal protection in the Foreground IP anywhere in the world.
Vendor agrees that for a period of two years after termination, it will not bring an action for invalidity, unenforceability, or non-infringement of any intellectual property owned by Agile or its affiliates, or their counterpart foreign patent applications or issued patents (the “Agile IP”), or assist others in bringing an action for invalidity, unenforceability, or non-infringement of the Agile IP, its counterpart foreign patent applications or issued patents. Vendor further agrees not to issue a press release, public announcement, advertisement, or news release alleging invalidity or unenforceability of the Agile IP. Breach of this section will immediately and automatically terminate the Agreement without notice and with no further action by Agile and shall relieve Agile of all outstanding payment obligations under the Agreement. This section survives termination.
9. CONFIDENTIALITY
All information disclosed by Agile to Vendor in connection with the Work under this Agreement shall be confidential, and may include but is not limited to, budgets, projections, proposals, trade secrets, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, maps, blueprints, diagrams, flow, and other technical, financial, or business information (the “Confidential Information”). Vendor agrees that it will hold such Confidential Information in confidence, with the same care that Vendor uses for its own Confidential Information, which, in no event, shall be less than a reasonable standard of care, and shall use the same solely in connection with the Work, and further agrees that it shall not make disclosure of any such Confidential Information to anyone except those employees and consultants necessary to review such Confidential Information for the Work. Prior to providing the Confidential Information to any consultant, Vendor will ensure that a nondisclosure agreement or an agreement with similar protections is in place with each consultant that is substantially similar to these obligations. Confidential Information will not include information which (a) is or has become publicly available without restriction through no fault of the Vendor or its personnel, (b) is or was received by the Vendor without restriction from a third party lawfully in possession of such information and lawfully empowered to disclose such information, (c) was rightfully in the Vendor’s possession without restriction prior to its disclosure by Agile, or (d) is or was independently developed by Vendor without reference to the Confidential Information of Agile. Vendor shall, upon termination or expiration of this Agreement or the request of Agile, return or destroy, at the Agile’s option, all originals and copies of all documents and materials it has received containing Agile’s Confidential Information, and all summaries, records, descriptions, modifications, negatives, drawings, and other documents or materials, whether in writing or in machine-readable form, prepared by the Vendor, or prepared under Agile’s direction, that are then in Vendor’s control which Vendor will destroy in accordance with Vendor’s internal record retention and disposal policies and procedures. Notwithstanding anything to the contrary herein, Vendor may retain copies of the Agile’s Confidential Information as necessary to comply with the legal, regulatory and other compliance obligations of Vendor and to monitor its performance under this Agreement. Vendor acknowledges that remedies at law may be inadequate to protect the Agile against any actual or threatened breach of this section by Vendor or by its representatives and, without prejudice to any other rights and remedies otherwise available to Agile, Vendor agrees to allow the seeking of injunctive or other equitable relief in Agile’s favor, without the requirement of providing proof of actual damages. This section survives termination.
10. INDEMNIFICATION
Vendor agrees to indemnify, defend, and hold harmless Agile and its officers, directors, shareholders, agents, licensees, employees, successors, and assigns, from and against any and all damages, liabilities, awards, losses, costs, and expenses including, without limitation, reasonable attorneys’ fees and court costs: (i) arising out of any breach by Vendor of any undertaking, warranty, representation, or agreement contained herein; (ii) arising out of a claim that a Work manufactured by Vendor pursuant to an order hereunder is defective or violates any law, regulation, or ordinance; (iii) arising out of a claim with respect to the Work (whether arising out of product liability, strict liability, negligence, or otherwise), including claims related to any injury, death, or damage to any person or property caused by the Work; or (iv) arising out of any claim that any specification, or Work made in compliance with the specification, or the manufacturing of the Work, infringes upon or violates any patent, trade secret, copyright, trademark, service mark, right of publicity, or other right of any third party.
11. TERMINATION
Agile may terminate this Agreement for convenience at any time upon 30-days written notice. Agile may terminate this Agreement for cause if: 1) Vendor materially breaches the Agreement and the claimed breach is not cured within 30 days of written notification, or 2) Vendor files a petition for bankruptcy or insolvency, has an involuntary petition filed against it that is not dismissed in 60 days, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated as bankrupt, or becomes ineligible for award due to debarment or suspension. Upon termination of this Agreement, Vendor must promptly terminate all terminated Work under this Agreement, Vendor must assign and transfer title and deliver to Agile all finished Work completed prior to Termination, and Vendor must return any material regarding the Work not already in possession of Agile including all photocopies, duplicates, and summaries must be immediately delivered by Vendor to Agile. Vendor shall continue all Work that is not terminated.
12. DISCLAIMER OF CERTAIN DAMAGES
Agile will not be liable for consequential, incidental, indirect, or punitive damages under this Agreement, even if Agile has been advised of the possibility of such damages. Under no circumstances will Agile be liable to Vendor for more than the greater of (i) the amount paid to Vendor by Agile during the twelve-month period immediately preceding the event(s) giving rise to liability hereunder, or (ii) one hundred dollars ($100).
13. CLASSIFIED INFORMATION OR COVERED DEFENCE INFORMATION
The Parties will handle, disclose, mark, and use classified information in accordance with the National Industrial Security Program Operating Manual (NISPOM) and any other applicable security laws or regulations. In the event the Parties disclose any Covered Defense Information as defined in DFARS 252.204-7012, the Parties represent that they comply with the requirements of the National Institute of Standards and Technology (“NIST”) Special Publication 800-171.
14. EXPORT CONTROL
The Parties will comply with all U.S. export control laws and regulations. The information that the Parties may wish to disclose pursuant to this Agreement may be subject to the provisions of the Export Administration Act of 1979 and the Export Administration Regulations promulgated thereunder, the Arms Export Control Act, and the International Traffic in Arms Regulations, and the sanctions laws administered by the Office of Foreign Assets Control. The Parties acknowledge that these statutes and regulations impose restrictions on import, export, and transfer to third countries of certain categories of data, and that license from the U.S. Department of State and/or the U.S. Department of Commerce may be required before such data can be disclosed hereunder, and that such license may impose further restrictions on use and further disclosure of such data. Moreover, a receiving Party shall not enable or allow a foreign entity or national to receive proprietary information without notifying the originating Party and receiving written authorization from the originating Party which shall only be granted if all exporting regulations requirements have been met.
15. FORCE MAJEURE
A Party shall not be liable to the other Party should its performance be prevented, restricted or interfered with by circumstances or events beyond its reasonable control (“Force Majeure Event”), provided that the affected Party uses its best efforts to resume performance promptly at the end of the Force Majeure Event
16. GENERAL
This Agreement will be governed by and construed under Colorado law without regard to its conflict of law principles. Each Party submits to personal jurisdiction in the U.S. District Court for the District of Colorado located in Durango, Colorado, and the La Plata County Court in Durango, Colorado, and each Party agrees that venue shall be proper exclusively in the aforementioned courts. If any term(s) of this Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive order, or other rule of law, such term(s) shall be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with such statute, regulation, ordinance, order, or rule, and the remaining provisions of this Agreement shall remain in full force and effect. Failure by Agile to enforce any provision of this Agreement shall not constitute a waiver of any other term in this Agreement. This Agreement shall not create a joint venture. Vendor agrees that it will comply with all applicable local, state, federal and international laws and regulations in connection with this Agreement. This Agreement constitutes the entire agreement of the Parties and supersedes all prior agreements. In the event of a conflict between this Agreement and future agreements between the Parties, this Agreement shall control. Silence does not constitute a conflict. In the event of a dispute, the prevailing party shall have the right to recover its actual attorney fees and costs of suit. No modifications to this Agreement will be binding unless in writing and signed by both Parties. This Agreement may be executed in counterpart. Agile has the right to assign or transfer this Agreement. The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise belonging to Agile. Sections 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 survive termination.
17. RELEASE OF INFORMATION
Release of Information. Seller shall not publish, distribute, or use any information developed under or about the existence of this order, or use the Buyer’s name or logo for the purpose of advertising, social media post, making a news release, creating a business reference, creating a website content or for products or service endorsement without prior written approval, such approval shall not be unreasonably withheld.