PURCHASE ORDER TERMS AND CONDITIONS
SELLER’S AGREEMENT TO COMPLY WITH THESE TERMS AND CONDITIONS (“TERMS”) IS A CONDITION OF DOING BUSINESS WITH RED6. SELLER’S ACCEPTANCE OF ANY PURCHASE ORDER SHALL BE DEEMED AN ACCEPTANCE OF THESE TERMS.
- ACCEPTANCE
Red Six Aerospace Inc. (“Red6”) hereby offers to purchase from the vendor named on the accompanying Purchase Order (“Seller”) the products described on that Purchase Order (the “Products”) and/or any Services (as defined in Section 7 below) subject to these terms and conditions. These Terms, together with information contained on the Purchase Order, and any additions or revisions mutually agreed to in writing by Seller and Red 6 (collectively, the “Purchase Order”) shall constitute the entire agreement and understanding of Seller and Red 6 with respect to the purchase and/or use of Seller’s Products or Services, superseding all prior oral or written understandings relating thereto and shall not be modified or interpreted by reference to any prior course of dealing, usage of trade or course of performance. If Seller’s order acknowledgement, invoice or any other communication from Seller contains provisions inconsistent with the provisions hereof, these Terms shall prevail and Red 6 hereby notifies Seller of its objection to and rejection of any such terms and conditions stated by Seller, whether or not material, that are in conflict with, inconsistent with, or in addition to those contained in these Terms. For the avoidance of doubt and notwithstanding anything to the contrary, the terms of Seller’s end user license agreement or any other terms related to sales of its Products and Services shall not apply to Red6, or minimally shall not supersede these Terms to the extent there is a conflict. Seller’s (a) failure to object within 10 days to any terms contained in the Purchase Order or (b) commencement of performance shall constitute Seller’s acceptance of these Terms. If Seller’s acceptance is by commencement of performance, Red 6 reserves the right to treat its offer as having lapsed before acceptance unless Red 6 is notified of such acceptance within a reasonable time
- PRICES
Unless otherwise expressly approved in writing by Red6, prices for all Products and Services are as noted on the Purchase Order and may not be changed without the prior written consent of Red6. Unless otherwise stated on the Purchase Order or elsewhere herein, all such prices are FOB the Delivery Point identified in the Purchase Order to which Products are to be shipped and are complete. No additional charges of any type shall be added without Red6’s express written consent. For the avoidance of doubt, nothing contained herein shall be deemed to be a minimum purchase commitment by Red 6 for any Products or Services. Seller warrants that any prices, rates, discounts and allowances on Products or Services are not less favorable than the lowest price currently extended to any other customer of Seller for the same or like Products or Services in equal or lower quantities. If this Purchase Order is for Services on a time and material basis and no price is prescribed for such Services, the price will be deemed to be the reasonable rate for the Services, which shall not exceed the lowest price currently extended to any other customer for the same or like Services in equal or lower quantities. Seller agrees to reduce prices or increase discounts and allowances, prospectively in the event of any general price reduction or cost reduction and retroactively in the event that more favorable terms have been made available to other customers of Seller during the term of this Purchase Order. Any properly assessed taxes, duties, or other fee imposed by a governmental authority, on or measured by the transaction between Red 6 and Seller shall be separately stated in each invoice indicating the tax and once paid, no additional tax assessments with respect to such invoiced amounts shall be paid. - TERMS OF PAYMENT
Unless otherwise stated on the Purchase Order, Red 6 shall pay all amounts due for Products or Services purchased hereunder within forty-five (45) days after (a) Red6’s receipt of Seller’s invoice or (b) if later, Red6’s acceptance of the Products or Services. No interest charges or other penalties for late payment may be assessed by Seller without the prior written consent of Red6. Red 6 may withhold or set off from any amounts otherwise due to Seller, any amounts owed by Seller to Red6. However, Red 6 at its option may pay in advance of inspection and acceptance without prejudice to those or any rights hereunder. C.O.D. shipments will not be accepted; items so tendered will be returned at Seller’s expense.
- SHIPPING AND DELIVERY
Seller shall be responsible for packing, shipping, and safe delivery of all Products and shall bear all risk of damage or loss until the Products are delivered to, and accepted by, Red6. Time is of the essence; delivery must be made in accordance with the schedule set forth in this Purchase Order. In the event of failure to make delivery, Seller shall pay a fee equal to ten (10) percent of the total price for the affected Products as liquidated damages and not as a penalty. Red 6 shall have the right to cancel a Purchase Order, in its entirety or as to Products or Services not delivered on time. Red 6 may return or store, at Seller’s expense, any Products delivered more than ten (10) days in advance of the delivery date specified for such Products. If accelerated shipping means are required to meet the delivery schedule set forth herein, or to minimize the lateness of delivery, excess shipping charges shall be borne by Seller. Unless otherwise stated on the Purchase Order, Red 6 reserves the right to refuse delivery in installments, and, if accepted, to defer payment without interest or penalty until shipment is completed. - INSPECTION
Products are subject to Red6’s inspection, testing and acceptance at destination. Payment therefor by Red 6 shall not constitute acceptance. Unless otherwise stated herein, title to the Products shall remain with Seller until acceptance by Red 6 hereunder. Red 6 shall have a commercially reasonable time after delivery of the to inspect and conduct commercially reasonable acceptance tests in respect of the Products. Acceptance of any installment shall not be deemed acceptance of Red6’s entire order or of any subsequent installment. Any acceptance of Products received pursuant to this Purchase Order expressly made or implied from Red6’s conduct is conditioned upon Seller’s cure of any nonconformity, whether or not such nonconformity substantially impairs the value of such Products. If any Products fail to conform to the terms hereof, Red 6 may reject such Products without affecting Seller’s obligations under this Purchase Order. FAILURE OF RED 6 TO REJECT ANY PRODUCTS SHALL NOT CONSTITUTE A WAIVER OF ITS LEGAL RIGHTS (INCLUDING RIGHT TO REVOKE ACCEPTANCE) IF RED 6 SUBSEQUENTLY DISCOVERS SUCH PRODUCTS ARE NONCONFORMING. ANY PREVIOUS ACCEPTANCE BY RED 6 OF SIMILAR PRODUCTS SHALL NOT CONSTITUTE A WAIVER OR DEFENSE HEREUNDER. Upon rejection of any Products hereunder, Red 6 may return such Products to Seller, at Seller’s risk and expense, and require Seller to promptly replace the nonconforming Products. Seller may not charge any restocking, handling, or other fees and charges in connection with rejected Products. - SERVICES
If a Purchase Order covers the performance of services for Red 6 (“Services”) or involves operations by Seller on the premises of Red6, Seller shall take all necessary precautions to prevent the occurrence of any injury to person or property during the progress of such work and except to the extent that such injury is due solely and directly to Red6’s negligence, as the case may be, shall indemnify and protect Red 6 (and its employees, subsidiaries, affiliates, successors, and agents) against all liability, claims or demands for injuries or damages to any person or property growing out of the performance of the Purchase Order including the cost of defending against any such claim. - SUPPORT
Seller shall provide support services as set forth on the Purchase Order. “Tier 2 Support” means (a) troubleshooting and isolating the issue, (b) using the tools available on the Seller’s support portal to seek known solutions to known issues, (c) using release notes to identify where fixes are applied and making these available to Red 6 as needed, (d) resolving most configuration type issues, and (e) escalating bug and other technical issues to Tier 3. “Tier 3 Support” means (i) advanced troubleshooting using diagnostic tools, (ii) advanced configuration analysis and problem identification, (iii) provision of fixes and/or workarounds to restore Red6’s system to full operation, (iv) testing of fixes prior to deliver of solution to Red 6 and (v) work with Tier 4 Support as necessary to ensure problem resolution or error correction. “Tier 4 Support” means (A) advanced troubleshooting and diagnostics, (B) root cause identification, (C) problem resolution, (D) error correction, (E) patch release schedule and maintenance software releases, and (F) testing of software patches and releases prior to delivery to Red6. - LICENSE/OWNERSHIP
If the Products include any generally available software of Seller (“Seller Software”), Seller hereby grants to Red 6 a worldwide, perpetual, irrevocable, fully paid up, non-exclusive right and license to access, use, copy, market, and distribute any such software as part of the Products delivered hereunder. To the extent that the Products or Services are produced to the specifications of Red6, Seller hereby assigns and agrees to assign to Red 6 any and all deliverables and results from the work performed hereunder, including without limitation all right, title and interest in and to any patent, copyright, trademark, trade secret or any other intellectual and proprietary rights therein. Seller agrees to take any further actions as deemed necessary by Red 6 to perfect such rights. - DATA
Red 6 shall own and retain ownership of all right, title and interest in and to the Red 6 Data. “Red 6 Data” means any and all data and information that is entered or loaded into the Products or in connection with the Services by or for Red6. Red 6 shall ensure that Seller has the right to access and use applicable account information and any data uploaded to the Products or in connection with the Services for the limited purposes of delivering the Products and Services and any related services, responding to any technical problems, troubleshooting and testing. Seller shall use commercially reasonable efforts to follow industry standards to safeguard and maintain the integrity of Red 6 Data, utilizing at a minimum SaaS industry standard security and backup procedures. - WARRANTIES
Seller warrants all Products and Services furnished under a Purchase Order: (a) to be free from defects in design, materials and workmanship; (b) to be of merchantable quality; (c) to conform strictly, to any Specifications included or referenced herein; and (d) to be fit and sufficient for their intended purposes. Seller further warrants that: (i) it has and is conveying to Red6, clear and marketable title to all Products, or deliverables resulting from Services, provided hereunder, free from all liens and encumbrances; and (ii) all Products and Services provided hereunder comply with all applicable laws, rules and regulations and do not violate or infringe upon any third party intellectual property or other rights or interest of any nature whatsoever. In the case of the performance of Services, Seller warrants that it shall perform the Services in a professional manner in accordance with applicable industry standards except to the extent a higher standard is specified in which case the higher standard shall apply. Such warranties shall survive any inspection, acceptance, delivery, payment for the Products and Services and termination of the Purchase Order and shall inure to the benefit of Red6, its successors, and assigns. Nothing herein shall limit any other warranties, express or implied, available to Red 6 under applicable law. For purposes hereof, “Specifications” means any and all specifications, drawings, samples, models, diagrams, bulletins, engineering sheets or other materials relating to the Products or Services provided by Seller to Red6. Products and Services corrected or replaced by Seller shall be subject to all of the provisions of this Purchase Order in the manner and to the same extent as Products and Services originally furnished hereunder. Red6’s warranty rights hereunder are in addition to, but shall not be limited by, any standard warranties offered by Seller. To the extent applicable based on Seller’s offered Products or Services, Seller agrees to be bound by the AS9100 Supplement attached hereto as Appendix 1. - LIMITATION OF LIABILITY
IN NO EVENT WHATSOEVER SHALL RED 6 HAVE ANY LIABILITY TO SELLER ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS OR SERVICES PURCHASED HEREUNDER, THE TRANSACTIONS CONTEMPLATED HEREBY, OR SELLER’S OR RED6’S CONDUCT OR ACTIONS IN RELATION TO ANY OF THE SAME OR TO EACH OTHER, IN AN AMOUNT IN EXCESS OF, AND RED6’S LIABILITY SHALL BE STRICTLY LIMITED TO, THE PURCHASE PRICE FOR THE PRODUCTS OR SERVICES WHICH GAVE RISE TO RED6’S LIABILITY. - INDEMNIFICATION
Seller agrees to indemnify, hold harmless and defend Red 6 (and its employees, subsidiaries, affiliates, successors and agents) from and against any and all judgments, liabilities, damages, losses, expenses and costs (including, but not limited to, court costs and attorneys’ fees) which relate to or arise out of (a) Seller’s design, manufacture, assembly, use, handling, sale or distribution of the Products or Services sold hereunder; (b) the performance of this Purchase Order by Seller, its employees or agents, whether on or off Seller’s premises; (c) Seller’s breach of any representation, warranty or obligation hereunder; (d) Seller’s actual or threatened violation of any law, rule or regulation of any governmental authority or agency (including, but not limited to, any law relating to contamination by, or the actual or threatened release of, any hazardous or toxic substance, waste or pollutant); or (e) any act, omission or negligence of Seller with respect to the performance of its obligations to any third party. This indemnity will survive Red6’s acceptance of and payment for the Products and Services hereunder and any termination of this Purchase Order. This indemnity will not be limited in any manner whatsoever by insurance coverage maintained by Seller
- QUIET USE
Seller understands and agrees that under no circumstances will Seller seek to cancel or otherwise limit or terminate Red6’s right to use the Products or access any warranty services its sole and exclusive remedy for any breach of this Purchase Order by Red 6 is limited to money damages. In the case of any breach hereof by Red6, Seller hereby waives its right to seek any injunctive relief that would interrupt or limit Red6’s access to any Product or Service. - WAIVER
Red 6 shall not be deemed to have waived any provision hereof, or any breach by Seller of any provision hereof, unless such waiver is specifically set forth in writing and executed by an authorized officer of Red6. No waiver by Red 6 of any provision hereof or any breach by Seller hereunder shall constitute a waiver of such provision on any other occasion or a waiver of any other breach by Seller. - GOVERNING LAW
This Purchase Order and the transactions contemplated hereby shall be governed by, and construed and enforced in accordance with, the laws of the State of California without regard to its conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable to this Purchase Order, or any purchase or sale made hereunder. - EXPORT CONTROL
This Purchase Order is subject to compliance with export controls and regulations. Seller acknowledges and agrees to abide by all applicable export controls and restrictions in the provision of the Products and Services to Red 6. Seller shall ensure that neither the Products nor Services, nor any related technical data or information, will be exported, directly or indirectly, in violation of any applicable laws. Seller agrees to comply with all relevant export controls laws and regulations, including but not limited to the laws and regulations of the United States and the European Union, pertaining to the export of goods, software, technology, or services. This includes compliance with the International Traffic in Arms Regulations (ITAR), the Export Administration Regulations (EAR), and any other relevant export control laws. Seller shall be responsible for determining the appropriate export classification of any Products, software, technology, or Services provided under this Purchase Order. The Seller agrees to promptly notify Red 6 in writing of any changes to the export classification that may affect the export controls applicable to the Products and Services. Seller represents and warrants that neither it nor any of its employees, contractors, or agents are listed on any government-issued list of restricted or denied parties. Seller agrees to perform due diligence to ensure compliance with such lists throughout the duration of this agreement. If required by applicable export controls laws, Seller shall obtain, at its own expense, any necessary export licenses or authorizations for the export of Products, software, technology, or Services under this Purchase Order. Seller agrees to provide Red 6 with a copy of such licenses or authorizations upon request. - SEVERABILITY
The invalidity, illegality or unenforceability, in whole or in part, of any provision, term or condition hereof shall not affect the validity and enforceability of the remainder of such provision, term or condition or of any other provision, term or condition, and, to the extent possible, such invalid, illegal or unenforceable provision shall be replaced by a provision most nearly reflecting the fundamental objectives of the original provision. - AMENDMENTS
This Purchase Order may not be amended except by written agreement of Seller and Red 6 expressly referring hereto. - ASSIGNMENT
Seller’s rights and obligations hereunder may not be assigned or otherwise transferred without Red6’s express prior written permission. Red 6 may freely assign, sublicense or transfer this Purchase Order and these Terms and all rights and obligations granted hereunder. - CANCELLATION
In the event of Seller’s breach of any provision hereof, Red 6 shall have the right to cancel a Purchase Order at any time without liability. Red 6 shall also have the right to cancel all or part of a Purchase Order, without cause, at any time by written notice, and Red 6 shall pay reasonable cancellation costs in accordance with industry practice, provided that in no event shall the total amount payable by Red 6 exceed the lesser of the price specified in the Purchase Order and demonstrable costs reasonably incurred prior to cancellation. - PROPRIETARY INFORMATION
All information obtained by Seller from Red 6 or learned by Seller in connection with this Purchase Order or performance hereunder or relating in any way to Red 6’s business shall be received in confidence and remain the property of Red 6 and shall be used and disclosed by Seller only to the extent necessary for the performance hereunder. - SECURITY INTEREST OF RED 6
Seller grants to Red 6 a security interest, to the extent any advance payment is made by Red6, in any Products made or purchased for a Purchase Order and agrees, promptly upon request of Red6, to sign and deliver to Red 6 appropriate UCC forms evidencing such security interest. - PROPERTY SUPPLIED BY RED6
Seller will keep all property furnished by Red 6 segregated and clearly marked, and Seller will maintain a complete inventory thereof. Seller assumes all risk of loss, destruction or damage to such property while in Seller’s custody or control and agrees to immediately notify Red 6 of any loss, destruction or damage. Upon termination or completion of this Purchase Order, Seller will deliver such property as directed by Red6, in good condition subject to ordinary wear and tear. - REMEDIES
Any failure of Seller to comply with a Purchase Order whether or not material, shall constitute a breach hereof. In the event of any such breach, Red 6 reserves the following rights against Seller: (a) to cancel and reject as much of Seller’s performance that is nonconforming and executory, or at Red6’s option, to cancel the whole order; and recover so much of the price as has been paid with respect to such cancellation or rejection; (b) to make covering purchases at Red6’s expense of any nonconforming Products or Services and recover the cost thereof; (c) to recover all incidental and consequential damages as defined by section 2-715 of the Uniform Commercial Code, as adopted in California; and (d) to recover from Seller the amount of any damage, injury or loss to Red 6 resulting from any breach of warranty as to Products or Services ordered hereunder, any breach of the price or delivery terms hereof, or any other breach of any other terms of this Purchase Order. Products that do not conform to the requirements of a Purchase Order may be returned to Seller at Seller’s expense for replacement, repair or credit at Red6’s option, or may be held for Red6’s instructions at Red6’s risk. Upon rejection or revocation of acceptance, Red 6 shall have a security interest in the Products in its possession or control for any payments made on their price, and any expenses reasonably incurred in their inspection, receipt, transportation, care and custody, and may hold and resell such Products, and such resale shall be without prejudice to any other remedies or rights of Red 6 against Seller. The remedies herein specifically reserved shall be cumulative and in addition to any other remedies provided by law or equity. - RELATIONSHIP OF PARTIES
Notwithstanding any provision hereof, for all purposes of this Purchase Order each party shall be and act as an independent contractor and not as a partner, employee, joint venturer, or agent of the other and shall not bind nor attempt to bind the other to any contract. Seller is acting as an independent contractor and Seller is solely responsible for all taxes, withholdings, and other statutory or contractual obligations properly attributable to Seller, including, but not limited to, appropriate Workers’ Compensation Insurance; and Seller agrees to defend, indemnify and hold Red 6 harmless from any and all claims, damages, liability, attorneys’ fees and expenses on account of an alleged failure by Seller to satisfy any such obligations.
About Red 6
Red 6, founded in 2018, is the creator of Advanced Tactical Augmented Reality System (ATARS) and Augmented Reality Command and Analytic Data Environment (ARCADE). Red 6 systems are the first wide field-of-view, full color demonstrably proven outdoor augmented reality solution that operates in dynamic outdoor environments. Together, they bring virtual and constructive assets into the real-world by allowing pilots and ground operators to see synthetic threats in real-time, outdoors, and critically, in high-speed environments.
