Terms of Sale

Acceptance: The sale or supply of any products and/or services (“Products”) by Xiphos Systems Corporation (“Xiphos”) to the customer (“Customer”) is expressly governed by the terms and conditions contained or referred to herein (the “Terms”). The Terms of this order constitute the entire agreement between the parties. Any additional or different terms and conditions set forth in Customer's purchase order or other communication are expressly rejected and will not be binding upon Xiphos unless specifically agreed to in writing by Xiphos’ authorized representative. Any order or authorization by Customer, whether written or oral, to furnish Products shall constitute acceptance of these Terms.
Orders: The Customer shall issue a valid purchase order with a description of the Products to be provided by Xiphos (“Order”). The Order must clearly identify the name of the Customer, and Xiphos’ quotation number. Xiphos’ quotation contains the final technical and financial specifications and are considered to constitute a binding order for delivery of Products in accordance with these Terms.
Changes: Any changes to this Order must be made through a formal revision to the Order that is signed by Xiphos.
Supply of Products: Xiphos shall supply the Products ordered in a good, timely and workmanlike manner, in accordance with generally accepted industry practice. If Xiphos cannot deliver the Products as ordered, the Customer is only entitled to a refund of the price paid, without additional compensation of any kind.
Prices/Taxes: All prices are as specifically stated in Xiphos’ quotation. Prices are subject to change without prior notice. Unless otherwise stipulated in writing by Xiphos, all prices are exclusive of taxes and duties.
Invoices and Payments: Xiphos shall submit an invoice for the Products performed as set out in the Order. All payments must be made within 30 days of the invoice date or has previously established in the Order. Any overdue sums are subject to compounded interest charges at the rate of 1.5% per month until payment is made (equivalent to an annual rate of 19.56%).
Delivery and Title: Unless otherwise stated by Xiphos in writing, all deliveries for the Products are DAP Incoterms 2020 delivered at the specified delivery location(s) on the Order. Customer shall accept all deliveries and may not cancel the Order based on delayed deliveries, whether in whole or in part. Title shall pass to Customer upon payment in full for the Products by Customer.
Limited Warranty: Xiphos warrants that the Products purchased by the Customer are of satisfactory quality, free from material defects in design, materials and workmanship and shall comply with their specifications and other requirements set out in the Order for a period of twelve (12) months (or until launch of a flight model, whichever occurs first) from the date of delivery by Xiphos. If a defect in material or workmanship is discovered during the warranty period, Xiphos shall replace the defective Products. If Xiphos determines that it is unable to replace the Products, Customer’s sole remedy under this Limited Warranty is to return the Products to Xiphos for a refund of the purchase price. In no event shall this warranty include liability for uninterrupted or error-free operation, correction of all defects; or loss or damage to data. THIS LIMITED WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. Xiphos shall obtain the same warranties as specified herein from its manufacturer or extend at its own expense these warranties by appropriate maintenance agreements wherein the complete warranty will pass to the Customer. Xiphos shall assist and co-operate with the Customer in making claims under such warranty.
Technical Support: Xiphos will provide technical support for the standard Products set out in the Order. Support for custom Products set out in the Order shall be done through a separately procured Engineering Support contract.
Intellectual Property Rights: Xiphos retains all intellectual property in and to each Product. Title to all intellectual property conceived, discovered and reduced to practice by Xiphos in the performance of this Order will be owned by Xiphos. Xiphos hereby grants Customer perpetual, non-exclusive, worldwide, fully paid-up, royalty-free, license (including right to sublicense) to use the Intellectual Property Rights in the Products in order to use the Products.
Intellectual Property Infringement: If a third party claims that the Products sold to Customer by Xiphos under this Order infringe that party’s patent or copyright, Xiphos will defend Customer against that claim at Xiphos’ expense, including attorneys’ fees, and pay all costs, penalties, damages, and attorney’s fees that a court finally awards against Customer or that are included in a settlement approved by Xiphos, provided that Customer: (i) promptly notifies Xiphos in writing of the claim; (ii) allows Xiphos to control the defense of the claim; and (iii) cooperates with Xiphos in the defense and any related settlement negotiations. The foregoing is Xiphos’ entire obligation to Customer and Customer’s sole and exclusive remedy regarding any claim of infringement. If such a claim is made or appears likely to be made, Customer shall permit Xiphos to enable Customer to continue to use the Products; to modify it; or to replace it with a product that is at least functionally equivalent. If, in its sole discretion, Xiphos determines that none of these alternatives is reasonably available, at Xiphos’ request, Customer shall return the Products to Xiphos for a full refund. Xiphos shall have no obligation regarding any claim based upon: (i) anything Customer provides which is incorporated into, or combined with the Products; (ii) Customer’s unauthorized modification of the Products; (iii) the combination, operation, or use of the Products with any product not provided by Xiphos as a system, or the combination, operation, or use of the Products with any product, data, apparatus or business method that Xiphos did not provide; or (iv) Xiphos’ compliance with Customer’s specifications or requirements.
Termination: In the event of a breach in any of these Terms, Xiphos reserves the right to terminate the Order in process by providing the Customer with a fifteen (15) day written notice. Xiphos shall retain any advances paid towards the cancelled sales without prejudice to all amounts due, and costs, interest or damages that the Customer may be ordered to pay. The Customer shall have the right to terminate the Order for its convenience by providing Xiphos with a written notice of termination of a minimum of thirty (30) days prior to the date of a scheduled delivery. The Customer will then owe Xiphos a cancelation fee of fifty percent (50%) of the total Order value.
Limitation of Liability: XIPHOS’S LIABILITY FOR ALL CLAIMS OF ANY KIND, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, FAILURE OF A REMEDY TO ACCOMPLISH ITS ESSENTIAL PURPOSE, OR OTHERWISE, FOR ALL LOSSES OR DAMAGES ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THESE TERMS, OR FROM THE PERFORMANCE OR BREACH THEREOF, OR FROM ANY PRODUCTS COVERED BY OR FURNISHED UNDER ANY ORDER OR ANY EXTENSION OR EXPANSION THEREOF (INCLUDING REMEDIAL WARRANTY EFFORTS), SHALL, IN THE AGGREGATE, IN NO CASE EXCEED THE ACTUAL AMOUNT CUSTOMER PAID FOR THE SPECIFIC SERVICE THAT DIRECTLY GAVE RISE TO THE CLAIM. IN NO EVENT, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, FAILURE OF A REMEDY TO ACCOMPLISH ITS ESSENTIAL PURPOSE, OR OTHERWISE, SHALL XIPHOS, ITS EMPLOYEES OR SUPPLIERS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR REVENUE, LOSS OF USE OF ANY PROPERTY, COST OF CAPITAL, COST OF PURCHASED POWER, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR PRODUCTS, DOWNTIME COSTS, OR CLAIMS OF THE CUSTOMER’S CUSTOMERS FOR SUCH DAMAGES, EVEN IF XIPHOS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND CUSTOMER WILL INDEMNIFY XIPHOS, ITS EMPLOYEES AND SUPPLIERS AGAINST ANY SUCH CLAIMS FROM THE CUSTOMER'S CUSTOMERS.
Force Majeure: Xiphos shall not be liable for any failure of or delay in the performance under these Terms for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, pandemic, embargoes, government orders or any other force majeure event. In the event of a threatened default or default as a result of any of the above causes, Xiphos shall exercise its best efforts to avoid and cure such default. In the event such an event prevents performance thereunder for a period in excess of ninety (90) calendar days, then the Customer may elect to terminate, cancel or suspend its order by a written notice to Xiphos.
Confidentiality: The Parties shall keep confidential any information provided under this Order and shall not disclose it without the other Party's prior consent in writing to any third party or use it other than for the purpose of the order. Neither Party shall transmit any information, suggestions, or ideas claimed to be confidential except pursuant to a non-disclosure agreement, signed by an authorized representative of each Party, which identifies such information and addresses its confidentiality.
Export: If Customer exports (or reexports), directly or indirectly, any Products supplied hereunder or any portion thereof, it is Customer’s responsibility to assure compliance with Canadian, U.S. and other applicable export control laws and to obtain any required licenses or approvals in its own name. Customer is also responsible for the accuracy and completeness of any information or certification provided by Customer for purposes of export control compliance.
Data Protection: Customer represents and warrants to Xiphos that: (i) it has, and shall cause any third party which provides personal data to Xiphos, the right to share personal data with Xiphos in compliance with applicable data protection laws; and (ii) Xiphos’ processing of the shared personal data shall not cause Xiphos to violate any data protection laws applicable to such shared personal data. Customer shall indemnify, defend and hold Xiphos, its directors, officers, employees, affiliates and subsidiaries, harmless from and against any and all claims, actions, proceedings, fines, costs, losses and damages arising out of, related to, or based on Customer’s breach of this Section 17.
Notices and consents: All notices or consents required to be given or made by the parties shall be deemed properly made if mailed, postage prepaid, to the addresses of the parties, or such other address established by notice, and shall be deemed to be received by the fourth (4th) business day after deposit or when actually received, whichever occurs sooner. Alternatively, notices or consents required to be given or made by the parties shall be deemed properly made if sent by electronic mailand such notices or consents are acknowledged by electronic mail by the other Party.
Governing Law: The laws of the Province of Quebec, Canada govern these Terms. Each party submits to the non-exclusive jurisdiction of the courts of the Province of Quebec, Canada in relation to any dispute connected with these Terms.
Assignment: This Order shall be binding upon and inure to the benefit of the Parties and their respective successor companies. The Customer may not assign any of its rights, duties, or obligations hereunder without Xiphos’ prior written consent.
Waiver: Neither party shall be deemed to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the waiving party. A waiver of a right or remedy on one occasion shall not be construed as a waiver on any other occasion.
Exclusion: The parties expressly exclude the application of the United Nations convention on Contracts for the International Sale of Goods and the implementing legislation thereto.
Language: The Parties hereto have requested that this Order and all documents related heretobe drafted in English. Les Parties aux présentes ont exigé que cette entente et tout document s’y rapportant soient rédigés en anglais.

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