Generic Terms and Conditions of Purchase
ARTICLE 1. SCOPE
“Loft Orbital” shall be defined as Loft Orbital Solutions Inc, or Loft Orbital Technologies SAS or Loft Orbital Federal LLC as the context requires. Supplier shall provide to Loft Orbital the work (“Work”) in accordance with a purchase order (“PO”). Supplier shall start the Work upon issuance of the related PO and invoice such Work as per ARTICLE 5. The PO expressly excludes the general terms and conditions of supplier. These generic terms and conditions of Loft Orbital (“GTC”) shall apply to the PO. In the event of any inconsistency between a PO, a commercial proposal and the GTC, the PO shall prevail, then the GTC followed by the commercial proposal.
ARTICLE 2. DELIVERY
All Work shall be delivered DAP delivery location specified in the PO (Incoterms® ICC 2020). Supplier shall pack, mark and deliver all Work in accordance with the requirements of the relevant PO so as to be in compliance with applicable transportation regulations and the best commercial practices for protection and shipment.
ARTICLE 3. TITLE AND RISK OF LOSS
Risk of loss or damage and title to any Work shall pass from supplier to Loft Orbital upon delivery of such Work. However supplier shall bear all risk of loss or damage to any Work rejected by Loft Orbital, after a receipt of notice of rejection from Loft Orbital until the Work is re-delivered to Loft Orbital.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
The supplier hereby expressly represents and warrants to Loft Orbital that (i) the Work conforms to the requirements of the PO; and (ii) the Work is free from defects, including latent defects, in design, materials and workmanship; and (iii) the Work is free from any liens, claims, mortgages, security interests and encumbrances of any nature and; (iv) does not and will not infringe the intellectual property rights of any third party and; (v) the Work is genuine, original, and free from counterfeit materials. The representations and warranties set forth herein shall be true, accurate and not misleading in all material respects. In case of breach of this ARTICLE 4, Loft Orbital shall be entitled to claim repair or replacement of the Work at the supplier’s risk and expense, in addition to any remedies available at law and equity.
ARTICLE 5. PRICE AND PAYMENT
Loft Orbital shall pay to the supplier the price as provided for in the applicable PO within thirty (30) days net from the reception of the invoice. Each invoice shall be sent upon delivery of the Work as per ARTICLE 2 and shall be billed to the address mentioned in the PO.
ARTICLE 6. CONFIDENTIALITY
“Confidential Information” shall mean these terms and conditions, the PO and any information disclosed herein. The parties agree to keep confidential and treat Confidential Information in the same manner and with the same degree of care and protection as the parties use to treat their own confidential information, but no less than reasonable care. Parties agree to use the Confidential Information only in the performance of such PO, and not to disclose any such Confidential Information to any third party without the prior approval of the disclosing party. Any Confidential Information disclosed by one party to the other shall remain the property of such disclosing party. The non-disclosure agreement, if any, signed by Loft Orbital and the supplier shall apply to the PO. The supplier shall not in any manner advertise, publish or release for publication any statement mentioning Loft Orbital or the existence of the PO, without the prior written consent of Loft Orbital.
ARTICLE 7. COMPLIANCE WITH LAWS
Supplier and Loft Orbital shall comply with all applicable laws during the performance of the Work. In particular, supplier and Loft Orbital shall comply and undertake to comply with all applicable national and international laws, statutes, regulations and codes relating to antibribery and anti-corruption, and to the General Data Protection Regulation 2016/679.
ARTICLE 8. TERMINATION FOR DEFAULT
Loft Orbital shall be entitled to terminate the PO in whole or in part for default of supplier that cannot be remedied or that supplier failed to remedy within thirty (30) days from notification of the default by Loft Orbital. Such termination shall be effective upon Loft Orbital’s transmittal to supplier of a written notice of termination specifying the extent to which the performance of Work under the PO is terminated. In such case, Loft Orbital shall be entitled to ask damages to supplier.
ARTICLE 9. EXPORT CONTROL
Supplier shall comply with all export control regulations applicable to the performance of the Work. Supplier shall identify any part of the Work that is subject to export regulations with the complete classification number. Supplier understands and agrees that the International Traffic in Arms Regulations (“ITAR”) and the Export administration Regulations (“EAR”) prescribe restrictions on the export and re-export of certain hardware, software, services and data to certain jurisdictions and/or recipients and/or end-users. As necessary to perform its obligations under the PO, supplier, at its own expense, shall prepare any necessary documentation and shall request and obtain any licenses or approvals required under the ITAR or the EAR.
ARTICLE 10. THIRD PARTY INDEMNIFICATION
Supplier shall indemnify and hold Loft Orbital and its directors, officers, employees, agents, subcontractors, affiliates, and consultants harmless from and against any and all third party claims and losses, damages, liabilities or demands awarded to the third party to the extent resulting from damage to property or injury to persons due to any negligent or intentional act or omission of supplier or any of its directors, officers, employees, agents, subcontractors, affiliates or consultants in the performance of the PO and shall pay all expenses and satisfy all judgments, costs or other awards which may be incurred by or rendered against them, or any of them, in connection therewith.
ARTICLE 11. LIABILITY
The supplier shall indemnify and hold harmless Loft Orbital against any damages resulting from any breach of its obligations under these GTC and the related PO, or from any act or omissions of the supplier or its subcontractors. Neither party’s maximum liability to the other party for all claims of any kind and any damages and losses under the PO shall exceed one hundred percent (100%) of the PO price. Nothing in this ARTICLE 11 shall exclude or limit the liability of a party: (i) for any matter for which it would be illegal for a party to exclude or attempt to exclude its liability, (ii) for fraud or misrepresentation, or (iii) gross negligence or willful misconduct. Neither party nor any of its affiliates or subcontractors or its or their respective officers, employees or directors shall be liable, directly or indirectly, to the other party or any of its affiliates or subcontractors or its or their respective officers, employees or directors for any amounts representing loss of profits or revenue, loss of business or indirect, special, incidental, exemplary, consequential or punitive damages arising from the performance or non-performance of obligations under the PO or any acts or omissions associated therewith.
ARTICLE 12. INSURANCE
Supplier shall maintain all necessary insurances for the performance of its obligations under the relevant PO. A breach of supplier’s obligation under this ARTICLE 12 shall not act as a waiver of its obligations under ARTICLE 10 or ARTICLE 11.
ARTICLE 13. GOVERNING LAW AND DISPUTE RESOLUTION
The GTC and the related PO are governed by Law of the place of business of Loft Orbital. The parties agree to seek to resolve any dispute arising in relation to the interpretation and/or execution of this PO and/or its termination by amicable settlement. Failing this, the dispute shall be settled by the rules of Arbitration of the International Chamber of Commerce, and such arbitration shall be located in the place of business of Loft Orbital.
ARTICLE 14. ASSIGNMENT
Neither party shall assign the PO or any of its rights, duties or obligations hereunder to any person or entity, in whole or in part, without the express prior written consent of the other party, not to be unreasonably withheld or delayed. Notwithstanding the above, Loft Orbital shall be entitled to assign, without supplier prior consent, the PO to its affiliates.
ARTICLE 15. AMENDMENTS
The provisions of the GTC and of the PO set forth the entire understanding between the parties hereto and supersede all previous communications, representations or agreements, whether oral or written, concerning the scope herein. The PO shall not be modified except by written instrument signed by both parties expressly identified as an “Amendment”.
ARTICLE 16. NATURE OF RELATIONSHIP
The PO shall not constitute, give effect to, or otherwise imply a joint venture, partnership, agency or formal business organization of any kind, and the rights, duties and obligations of each party shall be as expressly set forth herein.
ARTICLE 17. INTELLECTUAL PROPERTY RIGHTS
Supplier hereby grants at no additional cost to Loft Orbital a paid- up and royalty-free, irrevocable, non-exclusive, worldwide right and license to all of supplier’s rights in the intellectual property rights embedded in the Work, including a right to sub-license, for the duration of supplier’s relevant intellectual property rights (i) to use and have used, practice or sub-license the intellectual property contained in the Work, and to use all of the intellectual property rights included in or relied upon or used to produce the Work, for the purposes of the PO, the end-user, and/or (ii) for the full and proper performance of Loft Orbital and end-user, and/or (iii) the use of and the benefit of any Work and items to be delivered under the PO, and/or (iv) the repair or modification thereof.