Terms of Sale

TERMS & CONDITIONS OF SALE

1. SCOPE 

The Terms and Conditions of Sale (“Terms”) contained herein shall apply to all proposals, quotations and offers made by and purchase orders accepted by MACH. These Terms apply to all sales made by MACH except to the extent the Terms conflict with a Sales Agreement signed by MACH and Buyer. These Terms apply in lieu of any course of dealing between the parties or usage of trade in the industry. These Terms may in some instances conflict with some of the terms and conditions affixed to the purchase order or other procurement document issued by the Buyer, and MACH hereby objects to and rejects any additional or different terms proposed by Buyer, including those contained in Buyer’s purchase order, regardless of whether such different terms were proposed by Buyer before or after these Terms are effective, unless MACH expressly agrees to such terms in writing. In such case, the Terms contained herein shall govern, and acceptance of Buyer’s order is conditioned upon Buyer’s acceptance of the terms and conditions herein, irrespective of whether the Buyer accepts these conditions by a written acknowledgement, by implication, or acceptance and payment of products ordered hereunder. MACH’s failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of the provisions herein. Any changes in the Terms contained herein must specifically be agreed to in writing signed by an officer of MACH before becoming binding on either party. 

2. PRICE, TAXES AND QUOTATIONS 

Prices are subject to change upon thirty-day notice to Buyer. All prices are exclusive of any present or future sales, revenue or excise tax, value added tax, turnover tax, import duty (including brokerage fees) or other tax applicable to the manufacture or sale of any product. Buyer shall pay such taxes, when applicable, unless Buyer provides a proper tax exemption certificate. Unless otherwise agreed to in writing by the parties, prices quoted by MACH are those current at the date of quotation and shall be subject to variation by MACH. All prices are in United States dollars. 


3. DELIVERY 

Unless otherwise agreed in writing, sales term is Exworks (Incoterm 2020). MACH may deliver products in one or more consignment and invoice each consignment separately. MACH reserves the right to ship product that is not subject to cancellation in advance of the agreed shipping date. Unless otherwise agreed in writing, delivery time is not of the essence. Except as specified in 6(a), MACH does not accept liability for any loss arising from delay in delivery of products. 


4. PAYMENT TERMS 

Unless otherwise agreed in writing, and subject to credit approval, Payment terms shall be net thirty (30) days from the date of invoice. Buyer agrees to pay interest on any overdue amount at a rate of 18% per annum (1.5% per month), or the maximum amount permitted by law, from the date upon which any overdue amount became payable. Any single or combined order greater than $25,000.00, requires 50% of the purchase price due upfront at the time of order, unless established in writing by the seller. Unless otherwise agreed in writing, all payments are to be in United States dollars. For contracts outside the United States, MACH may require payment to be secured by an irrevocable letter of credit or a bank guarantee acceptable to MACH. Where payment is made by letter of credit, all costs of collection shall be for Buyer’s account.  In the event that MACH is required to bring legal action to collect delinquent accounts, Buyer agrees to pay reasonable attorney’s fees and costs of suit. MACH shall have the continuing right to review Buyer’s credit and change Buyer’s payment terms. 


5. NON-CONFORMING DELIVERY AND RISK OF LOSS 

Buyer shall notify MACH of any visible obvious defects, quantity shortages or incorrect product shipments within seven (7) days of receipt of the shipment. Failure to notify MACH in writing of any visible obvious defects in the products or of quantity shortages or incorrect shipments within such period shall be deemed an unqualified waiver of any rights to return products on the basis of visible obvious defects, shortages or incorrect shipments, subject to Buyer’s rights under Section 7. MACH shall retain a security interest in the products until Buyer’s final payment to MACH for the products. Risk of loss and title shall pass to Buyer as soon as the products have been placed with a transport agent. 


6. ORDER CANCELLATION 

Orders cannot be canceled for any reason without the prior written consent of MACH. 

(a) Buyers Cancellation for Default: Upon written notice to MACH, any order may be canceled in whole or in part in accordance with the terms hereof, because of MACH’s failure to deliver products by the Confirmed Shipping Date (this failure hereinafter called “Default”). Cancellation by Buyer for MACH’s Default, which may entitle Buyer to procurement costs, shall be effective only upon MACH’s failure to correct such Default within a reasonable period of time, but not less than thirty (30) days after receipt by MACH of written notice of such Default. Upon cancellation, Buyer, as its sole remedy, may recover from MACH as damages the difference between cost of procurement from another source (cover) and the contract price, less expense saved as a consequence of MACH’s breach. In no event shall these damages exceed ten percent (10%) of MACH’s product price multiplied by the number of products ordered by Buyer that remain unshipped at the time of cancellation. 

(b) MACH’s Cancellation: MACH shall have the right to cancel any unfilled order without notice to Buyer in the event that Buyer becomes insolvent, adjudicated bankrupt, petitions for or consents to any relief under any bankruptcy reorganization statute, or becomes unable to meet its financial obligations in the normal course of business. 


7. LIMITED WARRANTY 

Except as specified below, products sold hereunder shall be warranted by MACH to the first end user, for manufacturing only, to be free from defects in materials and workmanship and shall conform to MACH’s specifications or other specifications accepted in writing by MACH for a period of one (1) year from the date of shipment of the products. The foregoing warranty does not apply to any products that have been subject to misuse, neglect, or accident, or have been opened, dissembled, or altered in any way. MACH shall make the final determination as to whether its products are defective. MACH’s sole obligation for products failing to comply with this warranty shall be, at its option, to either repair, replace or issue credit for the nonconforming product where, within fourteen (14) days of the expiration of the warranty period, (i) MACH has received written notice of any nonconformity; (ii) after MACH’s written authorization, Buyer has returned the nonconforming product to MACH at Buyer’s expense; and (iii) MACH has determined that the product is nonconforming and that such nonconformity is not the result of improper installation, repair or other misuse, (iv) all equipment repair or replaced under warranty will be return via collect shipment or pre-pay and add. EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, ALL PRODUCTS SOLD HEREUNDER ARE PROVIDED "AS IS". IN NO EVENT WILL MACH BE LIABLE IN CONNECTION WITH THE SALE OF MACH PRODUCTS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; OR (d) COST OF REPLACEMENT GOODS EXCEPT AS SET FORTH IN THIS LIMITED WARRANTY, IN EACH CASE REGARDLESS OF WHETHER MACH WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. THE FOREGOING WARRANTY AND REMEDIES ARE EXCLUSIVE AND MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NO WARRANTY, EXPRESS OR IMPLIED, IS EXTENDED TO ANY PERSON OTHER THAN THE FIRST END USER. MACH DOES NOT ASSUME OR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH ITS PRODUCTS. This warranty is non-transferable.


What Is NOT Covered Under This Limited Warranty

  • Normal wear and tear or cosmetic damage.

  • Damage due to accidents, misuse, physical force, improper installation or operation, mishandling, neglect, fire, heat, water, humidity, liquids, insect infestation, or other intrusion.

  • Products that have been repaired, altered or modified by anyone other than MACH or its authorized service representative.

  • Problems caused by signal conditions, improper power conditions, radio interference, network reliability, cable or antenna systems.

  • Damage caused by improper use, ESD, power surges or misapplication.

  • Products, whose serial numbers have been removed, altered or rendered illegible.

  • Batteries 

  • Products used for institutional purposes.

  • Damage caused by acts of nature such as, but not limited to, lightning damage.

  • Products returned without valid proof of purchase.

  • Software


8. RETURN OF PRODUCT 

Any return of Product will be subject to MACH’s prior written consent and must be made pursuant to MACH’s product return procedures then in effect. Product must be returned, transport prepaid by Buyer, to the MACH facility (no C.O.D. or Collect Freight accepted) in original boxes and packing material, unless otherwise agreed by MACH. The Product travels at the risk and responsibility of Buyer. If returned product is claimed to be defective, a complete description of the nature of the defect must be included with the returned Product. All returns are subject to inspection. Product not eligible for return under the terms hereof shall be returned to the Buyer by MACH, freight collect. 


9. ALTERATION & REVERSE ENGINEERING 

Buyer agrees not to dissemble, open, damage, deface, remove stickers, paint or otherwise alter product in any way. Buyer further agrees not to perform any act with or upon the product for the purpose of reverse engineering the product, portions of the product, or in order to ascertain the manner in which the product functions. Buyer recognizes and agrees that all internal hardware, software, and functionality not readily visible from external view of the product constitute trade secrets belonging to MACH, and that efforts to determine such internal hardware, software or functionality are expressly prohibited and constitute misappropriation of trade secrets. 


10. LIMITED LIABILITY 

NEITHER MACH NOR BUYER SHALL BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, THE COST OF LABOR, REQUALIFICATION, REWORK CHARGES, DELAY, LOST PROFITS, OR LOSS OF GOODWILL ARISING OUT OF THE SALE, INSTALLATION OR USE OF ANY MACH PRODUCT. IF MACH HAS ANY LIABILITY FOR BREACH OF CONTRACT, BREACH OF ANY IMPLIED CONDITION, WARRANTY OR REPRESENTATION, THE AGGREGATE LIABILITY OF MACH TO BUYER SHALL BE LIMITED IN RESPECT OF ANY OCCURRENCE OR SERIES OF OCCURRENCES TO THE CONTRACTUAL VALUE OF THE PRODUCTS OR SERVICES THAT ARE THE SUBJECT OF THE AGREEMENT. 


11. INTELLECTUAL PROPERTY 

(a) Indemnification: Subject to the limitations herein, MACH will defend any suit or proceeding brought against Buyer if it is based on a claim that any product furnished hereunder constitutes an infringement of any U.S., Canadian, Japanese, EU or EFTA member country intellectual property rights. MACH must be notified promptly in writing and given full and complete authority, information and assistance (at MACH’s expense) for defense of the suit. MACH will pay damages and costs therein awarded against Buyer but shall not be responsible for any compromise made without MACH’s consent. In no event shall MACH’s liability for such damages and costs (including legal costs) exceed the contractual value of the products or services that are the subject of the lawsuit. In providing such defense, or in the event that such product is held to constitute infringement and the use of the product is enjoined, MACH, in its discretion, shall procure the right to continue using such product, or modify it so that it becomes non-infringing, or remove it and grant Buyer a credit for the depreciated value thereof. MACH’s indemnity does not extend to claims of infringement arising from MACH’s compliance with Buyer’s design, specifications and/or instructions, or use of any product in combination with other products or in connection with a manufacturing or other process. The foregoing remedy is exclusive and constitutes MACH’s sole obligation for any claim of intellectual property infringement and MACH makes no warranty that products sold hereunder will not infringe any intellectual property rights. 

(b) MACH retains its Intellectual Property: The sale of any products hereunder does not convey any license by implication, estoppel or otherwise covering combinations of the products with other equipment data or programs. MACH retains the copyright in all documents, catalogs and plans supplied to Buyer pursuant to or ancillary to the contract. Unless otherwise agreed in writing, Buyer shall obtain no interest in any mask or other tooling used in the production of any MACH product. 

(c) Software License. Any software incorporated into or provided in connection with the Products (“Software”) shall be subject to license and not sale. All such Software shall be subject to the terms and conditions set forth in Exhibit A, attached hereto and incorporated herein by reference, and shall be used solely as part of the Product with which it is provided. Buyer shall ensure that use or distribution of any such Software is subject to the end user license terms and conditions set forth in Exhibit A and that Buyer and its customers abide by such end user license agreements. Buyer shall not, and shall not permit any third party to, modify, disassemble, decompile, reverse engineer, rent, lease, loan, transfer, or make copies of the Software, except to the extent that such activities may not be prohibited under applicable law. MACH's licensors shall be third party beneficiaries with respect to such terms and conditions applicable to the respective Software and will have the right to enforce such terms and conditions on their own behalf.  Any customer of Buyer must register their software license with MACH to receive the benefit of such terms and conditions.


12. CONFIDENTIAL INFORMATION 

"Confidential Information" means all information, data and other materials furnished by one party to the other in connection with these Terms. Notwithstanding the foregoing, and excepting any trade secrets and proprietary information, "Confidential Information" does not include information which: (i) is publicly disclosed by the party disclosing the information either prior to or subsequent to the receipt of such information by the receiving party; (ii) is or becomes generally known in the trade through no fault of the receiving party; (iii) is lawfully disclosed to the receiving party by a third person who has lawfully acquired the Confidential Information; or (iv) was independently developed by the receiving party; provided, however, that the receiving party hereby stipulates and agrees that, if it seeks to disclose, display, divulge, reveal, report, publish or transfer, for any purpose whatsoever, any Confidential Information, such receiving party will bear the burden of proving that any such information was independently developed or is or became publicly available without any such breach. A party's failure to mark any Confidential Information as confidential, protected, trade secret or proprietary will not affect its status as Confidential Information under these Terms.

Except as required by law, receiving party shall not use or disclose any Confidential Information of the other party for any purpose except for purposes connected with the performance of its obligations under these Terms. Recipient shall not disclose any Confidential Information of the other party to third parties or to receiving party’s employees, agents, or contractors, except that, receiving party may disclose the other party’s Confidential Information to those employees of and attorneys and advisors retained by receiving party (“Representatives”) who are required to have such information in order to evaluate or engage in discussions concerning these Terms. 

Judicially Required Disclosures.  In the event that a receiving party is required in any judicial or administrative proceeding or requested or required by any governmental or regulatory authority, through the service of a subpoena, order or similar process, or otherwise required pursuant to applicable law, rule or regulation, to disclose Confidential Information of a disclosing party, prior to any disclosure, the receiving party will give prompt notice to the disclosing party, unless prohibited by law from doing so, so that the disclosing party may seek an appropriate protective order. The receiving party agrees to use commercially reasonable efforts cooperate with the disclosing party in any such efforts. In the event that a protective order is not obtained, the receiving party agrees to furnish only the portion of the Confidential Information which it is advised by opinion of counsel is legally required or requested to be furnished.

13. FORCE MAJEURE 

(a) Effect of Force Majeure: In the event any party is unable to perform its obligations under an Order (excluding any payment obligations), in whole or in part, as a result of a Force Majeure event as that term is defined in Section 13(b) below, such party shall be relieved from performance of its obligations under this Order to the extent and duration of such Force Majeure event. For the duration of the Force Majeure event, the other party's corresponding obligations under this Order are relieved to the extent the party claiming Force Majeure fails to perform for that reason.

(b) Force Majeure Defined: The term “Force Majeure” means a condition or occurrence that is beyond the reasonable control such as the following:  acts of God or of the public enemy; severe weather conditions beyond those to which the Equipment may foreseeably be subject; fires; explosions; floods; draughts; epidemics or quarantines; freight embargoes; war; civil strife; insurrection; sabotage; terrorism; invasion; government action, or riot. It is understood and agreed that the settlement of strikes or lockouts shall be entirely within the discretion of the party having the difficulty, and that the above requirement that any Force Majeure shall be remedied with all reasonable dispatch shall not require the settlement of strikes or lockouts by acceding to the demands of opposing Parties when such course is inadvisable in the discretion of the party having difficulty.

(c) Limits of Force Majeure: Neither MACH nor Buyer shall be entitled to invoke the benefit of the Force Majeure provisions in this Section 11 to the extent performance is affected by any or all of the following circumstances:

(1) economic hardship;

(2) lack of proper operation, maintenance, design or engineering by the party claiming a Force Majeure event or as to equipment or facilities utilized by such party to perform its obligations under this Order;

; and/or

(4) the failure of a party to use commercially reasonable efforts to remedy a circumstance that would otherwise constitute a Force Majeure event and to resume its obligations within a reasonable time.

(d) Notice of Force Majeure: In the event that a Force Majeure event is claimed by a party, such party shall orally notify the other party as soon as reasonably possible after the notifying party, exercising due diligence, has determined that a Force Majeure event has taken place. Such oral notice shall be followed by written notice by the party claiming such event to the other party promptly after such oral notice; provided, however, that the failure to make such notification within such time period shall not constitute a waiver of any rights or protections for such Force Majeure event. Such notice shall include a description of the cause, nature and extent of the Force Majeure event, the time of its occurrence, its expected duration and any actions being taken to avoid or minimize its effect. 

14. EXPORT REGULATIONS 

Buyer acknowledges that the products and technology it receives from the Seller are subject to the U.S. export control laws and regulations, including but not limited to the Export Administration Regulations, and agrees to comply fully with all laws and regulations concerning the purchase and sale of products. Buyer further agrees not to export, reexport, transmit, or otherwise transfer any of the products and or related technology subject to these terms and conditions in violation of United States laws and regulations including but not limited to the Export Administration Regulations and the Office of Foreign Asset Controls Regulations.  The products are authorized by the United States for delivery to the ultimate destination as shown on the shipment/invoice address and any contrary diversion is prohibited.  


15. ASSIGNMENT AND SUBCONTRACTING 

MACH shall be entitled at all times to assign its rights under the contract (in whole or in part) or to subcontract any part of the work or services to be provided under the contract as it deems necessary or desirable. 


16. SEVERABILITY 

These terms and conditions may be severable and the invalidity, illegality or unenforceability in whole or in part of any provision shall not affect the validity of other provisions. To the extent of any such invalidity, illegality or unenforceability the parties by mutual agreement, or the adjudicator in any proceeding shall have authority and jurisdiction to sever such provision and to add to these terms and conditions a provision similar in terms and intended effect as may be possible, legal, valid and enforceable. 


17. NOTICES 

Any notice hereunder shall be deemed to have been given if sent by prepaid first class mail to the party concerned at its last known address. Notice to MACH shall be to 

MACH 

2002 Bethel Rd, Ste 105

Finksburg, MD 21048

18. OFFICIAL LANGUAGE 

The official language of these terms and conditions and of any related documents is English, which shall be controlling for purposes of interpretation, or in the event of a conflict between English and non-English versions. 

19. WAIVER 

Failure by MACH to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter. 


20. APPLICABLE LAW
UNLESS OTHERWISE AGREED IN WRITING, THE TERMS AND CONDITIONS CONTAINED HEREIN SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF MARYLAND, USA WITHOUT REFERENCE TO ITS CHOICE OF LAW RULES AND SHALL NOT BE GOVERNED BY THE 1980 U.N. CONVENTION ON CONTRACT FOR THE INTERNATIONAL SALE OF GOODS. The Parties each consent to the exclusive venue of the courts of competent jurisdiction in Baltimore County within the State of Maryland and waive any claim based on personal jurisdiction or forum non conveniens.  


21. WASTE ELECTRICAL & ELECTRONIC EQUIPMENT (WEEE) 

If the MACH products are furnished to Buyer as component products on an OEM basis or as private label goods for distribution under Buyer brands, then Buyer understands and agrees that Buyer shall be deemed the “producer” of all such Products under any laws, regulations or other statutory scheme providing for the marking, collection, recycling and/or disposal of electrical and electronic equipment (collectively, “WEEE Regulations”) in any jurisdiction whatsoever, (such as for example national laws implementing EC Directive 2002/96 on waste electrical and electronic equipment, as amended), and shall be solely responsible for complying with all such applicable WEEE Regulations.  


22. TRADEMARKS and BRANDS 

MACH’s trademarks and brands are MACH intellectual property and are important and valuable assets of the corporation. Buyer(s) cannot remove, alter or conceal MACH’s trademarks or logos from Products. 


23. PUBLICITY

MACH may use Buyer’s name and logos in its customer lists and provide a brief factual description of the Buyer in MACH’s prospect presentation materials and other marketing materials. Buyer agrees to serve as a reference for MACH from time to time as reasonably requested by MACH.


24. PROTOTYPES

Prototype Products, Accessories, Software, and Signal Services may be provided by MACH from time to time ("Prototypes"). Such Prototypes are for use only in product testing/evaluation by qualified Buyer representatives in an appropriate test environment. PROTOTYPES ARE PROVIDED "AS IS" WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BUYER AGREES TO DEFEND, INDEMNIFY AND HOLD MACH HARMLESS FROM ANY AND ALL CLAIMS RELATED TO PROTOTYPES.


25. SIGNAL SERVICES LICENSE

This Section applies to any Signal Services, as defined below, which may be provided by MACH in accordance with these Terms.

“Signal Services” are defined as correction signal subscriptions which are available as TerraStar Signal Services.

(a) The TerraStar Signal Services are not intended for primary navigation purposes and shall not be used in or on any offshore application or used in or on any offshore dynamic positioning application. The TerraStar Signal Services are supplied wholly for use within the following market sectors: (i) the agricultural market; (ii) all other markets where Products are utilized on land; (iii) UAV market where Products are airborne and utilized over or above land only; (iv) all other markets where Products are airborne and are utilized over or above land and over or above territorial waters adjacent to land; or (v) the government and military market. Except as otherwise expressly agreed in writing by MACH, TerraStar Signal Services shall not be used in conjunction with any receiver hardware incorporated within any autonomous road motor vehicle.

(b) TerraStar Signal Services purchased for use in connection with the market sectors identified in subsuections (a)(i) and (a)(ii) above are for use on land only. TerraStar Signal Services purchased for use in connection with the market sectors identified in subsection (a)(iii) are for use over or above land only. TerraStar Signal Services purchased for use in connection with the market sectors identified in subsections (a)(iv) and (a)(v) are for global use.

(c) Where TerraStar Signal Services are purchased for use in connection with the market sectors identified in subections (a)(i) and (a)(ii) above, then TerraStar Signal Services shall be: (A) geo-gated and shall not be available where the position determined on the receiver hardware is computed as being offshore; and (B) speed-gated and shall not be available where the speed measured by the receiver hardware exceeds 36ms-1.

(d) MACH shall have no liability to Buyer, end user, or to any third-party in connection with the de-activation of the TerraStar Signal Services as a result of the concepts of geo-gating or speed-gating being applicable. Buyer shall be responsible for and shall save, indemnify, defend and hold harmless MACH and its affiliates on demand, from and against any and all claims, losses, damages, costs (including attorney fees and legal costs) expenses and liabilities which MACH may suffer in connection with the de-activation of the TerraStar Signal Services as a result of the concepts of geo-gating or speed-gating being applied.

(e) Where the TerraStar Signal Services are used in connection with the market sectors identified in subections (a)(iii) and (a)(iv), the same shall be used in accordance with the provisions of any relevant international laws, regulations, local laws, by-laws, Civil Aviation Conventions and other pertinent conventions (“Laws”) which are applicable to the use of airspace and which determines the rules with respect to air traffic control or any other air traffic services which relate to such airspace. The onus is upon Buyer or end user, as applicable, to fully familiarize itself with the aforementioned Laws. MACH shall have no liability to Buyer, end user,  or to any third-party in connection with the use of the TerraStar Signal Services with airborne applications and Buyer shall be responsible for and shall save, indemnify, defend and hold harmless MACH and its affiliates on demand, from and against any and all claims, losses, damages, costs (including attorney fees and legal costs) expenses and liabilities which MACH may suffer in connection with the use of the TerraStar Signal Services with airborne applications.

(f) NO WARRANTY. THE SIGNAL SERVICES ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND AVAILABILITY AND/OR ACCURACY OF THE SIGNAL SERVICES ARE NOT GUARANTEED. SIGNAL SERVICES ARE PROVIDED AT THE SOLE RISK OF THE BUYER AND END USER, AS APPLICABLE. ALL PUBLISHED DATA RELATING TO THE COVERAGE OF THE SIGNAL SERVICES IS APPROXIMATED. RECEPTION AND/OR ACCURACY OF THE SIGNAL SERVICES IS DEPENDENT ON, BUT NOT LIMITED TO: (i) THE BUYER’S OR END USER’S, AS APPLICABLE, RECEIVER AND LOCATION; (ii) INTERFERENCE TO TRANSMISSION OF SIGNAL SERVICES FROM ATMOSPHERIC OR OTHER SOURCES; (iii) OBSTRUCTION OF ACCESS TO, OR REFLECTION OF SIGNAL SERVICES DUE TO THE PROXIMITY OF STRUCTURES AT THE WORK LOCATION; (iv) INTERRUPTION TO OR NON-PERFORMANCE OF ANY OF THE GNSS CONSTELLATIONS; AND/OR (v) BUYER USING ANY SIGNAL SERVICES IN CONJUNCTION WITH ANY FREE TO AIR SIGNAL SUCH AS IALA MARINE RADIO BEACONS.


Exhibit A

SOFTWARE USER LICENSE

Distribution and use of Products and Software must be made subject to the following terms and conditions (or terms materially as protective of MACH (“Supplier”) and its licensors) regarding the use of the Software by the end user (“you” or “End User”). 

1. DEFINITIONS 

“Documentation” shall mean Supplier’s user manuals and handbooks relating to the Software in any form or media, that describe the functionality, components, features, or requirements of the Software, including any aspect of the configuration, integration, operation, or use of the Software.

“Licensed Program” shall mean the executable processing programs of licensed information, which is composed of various modules in the Software package provided by the Licensor.

“Product” shall mean the hardware product purchased by the End User with which this Agreement was provided. “Software” shall mean the software, firmware and other code incorporated in the Product and necessary for use of the Product, in executable code format only, including without limitation any and all computer code, modifications, updates, revisions, manuals and help materials, derivative works and/or improvements thereto. Software also includes any updates, improvements or modifications hereinafter furnished to End User by Supplier, whether requested by End User or initiated by Supplier or the standalone CROSTM software. It is understood that the provision of any such updates, improvements or modifications shall be at Supplier' sole discretion and may be subject to additional fees and/or additional terms and conditions. 


2. LICENSE GRANT, OWNERSHIP 

2.1 License Grant. Subject to the terms and conditions of this Agreement, Supplier grants to End User a revocable, limited, non-exclusive, non-transferable, non-sublicensable license to use the Software solely as incorporated in the Product and solely as necessary for use of the Product in unmodified form as shipped by Supplier. 

2.2 No Other Rights Granted. End User shall not, and shall not permit any third party to, modify, translate, reverse engineer, decompile, disassemble, attempt to discover any source code or underlying ideas or algorithms of the Software, or otherwise reduce the Software to human perceivable form except to the extent that such activities may not be prohibited under applicable law and shall not copy or create derivative works of the Software. End User shall not, and shall not permit any third party to, benchmark any competitive products or disclose benchmarking information regarding the performance of the Software. The Software shall be used solely as incorporated in the Product and End User shall not, and shall not permit any third party, to remove the Software from the Product. 

The Software is and shall remain the exclusive property of Supplier. Except for the license granted in Section 2.1, Supplier shall retain all right, title and interest, including all intellectual property rights, in and to the Software. End User acknowledges that the licenses granted pursuant to this Agreement do not provide End User with title or ownership of the Software or a copy of the Software, but only a right of limited use. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED BY SUPPLIER OR ITS LICENSORS. 

2.3 Third Party Software. End User acknowledges that third party software may be embedded or otherwise delivered with the Software. End User may only use such third-party software as integrated with and part of the Software. Notwithstanding anything to the contrary, any Software owned or licensed by third parties (“Third Party Software”) shall be subject to restrictions and limitations set forth in this Agreement and any additional terms and conditions imposed by the respective third party and provided in connection with the Software or the Product (or associated documentation). Suppliers direct and indirect third party licensors shall be third party beneficiaries with respect to such terms and conditions applicable to the respective Third Party Software (including the terms and conditions set forth in this Agreement) and shall have the right to enforce such terms and conditions on their own behalf. 

2.4 No Work for Hire.  No modification or changes made to the Licensed Program or Documentation by Supplier pursuant to an End User’srequest shall be considered as constituting, producing, or resulting in a “work for hire” under the copyright laws of the United States.  Supplier shall for all purposes be deemed the author and originator of all products directly resulting from any work performed by Supplier pursuant to this Agreement.


3. TERM AND TERMINATION

3. 1 Term. This Agreement shall remain in effect perpetually unless terminated as provided below. 

3.2 Termination. This Agreement shall automatically terminate in the event of unauthorized distribution, copying or use of the Software by End User or other breach of this Agreement by the End User. The license shall also terminate under this Agreement for CROSTM upon the failure of End User to pay the annual license fees.  

3.3 Effect of Termination. Upon termination of this Agreement, the rights and licenses granted to End User under this Agreement shall immediately terminate. End User shall immediately cease all use of the Software (whether or not necessary for use of the Product) and immediately securely destroy or return to Supplier all copies of the Software and any associated documentation. Failure to pay annual CROSTM license fees shall result in the disabling of the Software. No expiration or termination will affect End User’s obligation to pay all fees that may have become due before such expiration or termination.

3.4 Survival. Any rights to payment, any right of action for breach of the Agreement prior to termination, and the provisions of Sections 2.2, 3.3, 4-7, and 13-15 shall survive the termination of this Agreement. 


4. FEEDBACK 

If you provide feedback to Supplier concerning the Software (“Feedback”), Supplier may use it to improve or enhance its products. You hereby grant Supplier a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit such Feedback without restriction. 


5. INDEMNIFICATION 

You will indemnify, hold harmless, and defend Supplier (including all of its officers, employees, directors, subsidiaries, representatives, affiliates, agents, and suppliers) to the fullest extent permitted by law from and against any damages (including attorney’s fees and expenses), claims, and lawsuits that arise or result from your use of the Software. 


6. LIMITED WARRANTY; DISCLAIMER OF OTHER WARRANTIES

Supplier warrants that the Software and any update of the Software will perform substantially in accordance with the specifications found in the user manual in effect as of the date of this Agreement.  The warranties contained in this Section are made for a period of one year from the date on which the Software or update is delivered to End User or from the date on which a user manual is leased by End User.  Supplier does not warrant that the functions contained in the Software or in any update will meet the requirements of End User or Authorized Users or that the operation of the Software or update will be uninterrupted or error free or achieve  a particular result.  Supplier is not responsible for problems caused by changes in or modifications to the operating characteristics of any computer hardware or operating system for which the Software or an update is procured, nor is Supplier responsible for problems which occur as a result of the use of the Software in conjunction with software or with hardware which is incompatible with the operating system for which the Software is being procured.  EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THE SOFTWARE IS PROVIDED “AS IS” AND SUPPLIER AND ITS LICENSORS MAKE NO PROMISES, REPRESENTATION OR WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING THEIR CONDITION, QUALITY, DURABILITY, SUITABILITY OR THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, AND SUPPLIER AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE AND THE IMPLIED CONDITIONS OF SATISFACTORY QUALITY AND ACCEPTANCE AS WELL AS ANY WARRANTY ARISING BY LAW OR FROM A COURSE OF DEALING OR USAGE, OR LOCAL JURISDICTIONAL ANALOGUES TO THE ABOVE AND OTHER IMPLIED OR STATUTORY WARRANTIES. SUPPLIER FURTHER EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESSED OR IMPLIED, RELATING TO COMPUTER VIRUSES, WORMS, TROJAN HORSES AND OTHER TYPES OF DESTRUCTIVE CODING.  

7. LIMITATION OF LIABILITY 

7.1 THE LIABILITY OF SUPPLIER AND ITS LICENSORS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF $100 OR THE AMOUNT RECEIVED BY SUPPLIER OR ITS RESPECTIVE LICENSORS, AS APPLICABLE, FOR LICENSING THE SOFTWARE UNDER THIS AGREEMENT. IN NO EVENT SHALL SUPPLIER OR ITS LICENSORS HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS, INCOME OR GOODWILL, BUSINESS INTERRUPTION, LOSS OR CORRUPTION OF DATA, LOSS OF SERVICE AND/OR INTERRUPTION OF SERVICE, OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS RESULTING FROM THE USE OF THE SOFTWARE, EVEN IF SUPPLIER OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 

7.2 THE LIMITATIONS AND DISCLAIMERS IN SECTION 6 AND 7.1 ARE MADE TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW. END USER ACKNOWLEDGES AND AGREES THAT SUCH DISCLAIMERS AND LIMITATIONS CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT AND ACCURATELY REFLECT THE ALLOCATION OF RISK EXPRESSLY AGREED TO BY THE PARTIES. NOTWITHSTANDING THE FOREGOING, SOME COUNTRIES, STATES, OR PROVINCES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR OTHER DAMAGES FOR CERTAIN PRODUCTS. THUS THE LIMITATION OF LIABILITY AND EXCLUSIONS MAY BE LIMITED IN THEIR APPLICATION TO YOU.

8. STANDARD MAINTENANCE SERVICES

8.1 Supplier shall make user documentation relating to the Software available to End User. Supplier shall provide help desk maintenance support to End User regarding the use and operation of the most current version of the Software as part of the paid licensee fee(s). Software maintenance support relating to the most current version of the Software shall be made available on a daily basis, Monday through Friday, excluding Supplier observed holidays, during the hours of 9:00 a.m. through 5:00 p.m. EST.  Help desk support shall be provided telephonically or through the use of electronic mail (e-mail) and shall be limited to providing End User with assistance in the operation and functioning of the most current version of the Software. Under this Agreement, however, Supplier assumes no responsibility for making any customized enhancements to the Software or for providing End User with assistance in processing any data. 

8.2 Unless earlier terminated, maintenance support relating to the most current version of the Software shall be provided by Supplier during an initial 12-month period following End User’s required registration of this Agreement with Supplier and thereafter on an annual basis under a separately paid annual license subscription.  During the initial 12-month maintenance support period and thereafter with each paid subscription, End User shall be provided with corrections of substantial defects in the Software so that the Software will operate as materially described in the Operator Manual.  Additionally, End User shall be provided with any commercially available upgrades, patches, and/or service packs relating to the Software released by Supplier.  Periodic updates of the Software that may incorporate (A) corrections of any substantial defects, (B) fixes of any minor bugs, and (C) at the sole discretion of Supplier, enhancements to the Software.  Standard Maintenance Services do not include: (i). Charged-for-Enhancements that are offered, at Supplier's sole discretion, to End Users upon payment of a license fee; (ii.)  Custom Programming Services; (iii.)  On-site support; (iv).  Training; (v.)  Hardware and related supplies; or (vi.) BASEg software maintenance after the initial warranty period.

8.3 End User understands that if End User discontinues and then resumes purchase of Standard Maintenance Services, End User will be required to pay Supplier the entire Maintenance Fees for the period of discontinuance, plus the Maintenance Fee for the term of Standard Maintenance Services then commencing.

8.4 Other Charges.  End User agrees to pay Supplier for Charged-for-Enhancements, Custom Programming Services, On-Site Support, and Training in the amount and pursuant to the terms set forth in the agreement and invoice for such services.  BASEg maintenance support, after the initial 12 month warranty period, may be requested by End User on a time and material basis.

9. CHARGED-FOR-ENHANCEMENTS

From time to time, at Supplier’s sole discretion, Supplier will make available to End User Charged-for-Enhancements to the Software that End User may license from Supplier upon payment of the license fee established by Supplier.

10. CUSTOM PROGRAMMING SERVICES

Supplier may provide Custom Programming Services to End User, as agreed to in a separate written agreement, signed by both parties, that specifies the Custom Programming Services to be provided by Supplier and the fee for the services.  Custom Programming Services shall include, but are not limited to, development of custom computer programs and installation, training, and maintenance with respect to such computer programs.

11. ON-SITE SUPPORT

Supplier, upon receipt of a written request from End User, will provide End User On-Site Support at a mutually agreed time.  End User agrees to pay Supplier all costs associated with the provision of on-site support, including charges for (i) Supplier’s personnel, (ii) charges for travel, lodging and miscellaneous expenses, and (iii) all applicable taxes.


12. TRAINING

Upon receipt of a written request from End User, Supplier will provide Training at a mutually agreed time at the offices of Supplier, unless Supplier agrees to conduct the Training elsewhere.  End User agrees to pay Supplier all costs associated with this Training, including (i) charges for Supplier’s personnel, which may include a surcharge for training conducted at End User’s location, (ii) charges for travel, lodging and miscellaneous expenses, and (iii) all applicable taxes.


13. U.S. GOVERNMENT RESTRICTED RIGHTS

The Software and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Software and accompanying Documentation by the U.S. Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement. 


14. PATENT AND COPYRIGHT INDEMNITY

Supplier will defend at its own expense any action brought against End User to the extent it is based on a claim that the Licensed Programs used within the scope of the license granted hereunder infringe a United States patent, copyright or other proprietary right of a third party. Supplier will pay any costs, damages or reasonable attorney fees finally awarded against End User in such action which are attributable to such claim, provided Supplier is promptly notified in writing of such claim, may control the defense and/or settlement of such claim, and is provided with all requested assistance, information and authority. In the event that a Licensed Program becomes, or in Supplier’s opinion is likely to become, the subject of a claim of infringement of a United States patent, copyright or trade secret, Supplier may at its option either secure End User’s right to continue using the Licensed Programs, replace or modify the Licensed Programs to make them not infringing, or provide End User with a refund of the license fee less depreciation on a 5 (five) year, straight-line basis. Supplier shall have no liability for any claim of patent, copyright or trade secret infringement based on the use of a Licensed Program in any form other than the original, unmodified form provided to End User or the use of a combination of the Licensed Programs with hardware, software or data not supplied by Supplier where the used Licensed Programs alone in their original, unmodified form would not constitute an infringement. The foregoing states End User’s entire liability for infringement or claims of infringement of patents, copyrights or other intellectual property right.


15. Compliance with Data Privacy Laws.  

To the extent applicable to this Agreement, End User shall comply fully with all applicable Federal, State and other data privacy laws, rules, regulations and/or conventions respecting the access to and/or use of consumer and/or personal information and/or data including, but not limited to, all (i) all consumer protection laws, (ii) all such laws respecting personal identifying information, and (iii) all such laws respecting individual medical, health care and/or similar information. End User further represents and agrees that its data provided to or used by the Software does not contain any protected health information or personal identifying information.


16. MISCELLANEOUS 

16.1 Assignment. End User may not assign this Agreement or any rights or obligations hereunder, directly or indirectly, by sale, merger, operation of law or otherwise, without the prior written consent of Supplier. MACH may freely assign this Agreement without restriction. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. 

16.2 Export Regulations. End User acknowledges that the software it receives from the Supplier is subject to the U.S. export control laws and regulations, including but not limited to the Export Administration Regulations, and agrees to comply fully with all laws and regulations concerning the purchase and sale of products. End User further agrees not to directly or indirectly export, reexport, transmit, or otherwise transfer any of the software and or related technology subject to these terms and conditions in violation of United States laws and regulations including but not limited to the Export Administration Regulations and the Office of Foreign Asset Controls Regulations.  The software is authorized by the United States for delivery to the ultimate destination as shown on the shipment/invoice address and any contrary diversion is prohibited.  

16.3 Incorporation of Agreements. The terms of the Terms & Conditions of Sale are incorporated herein by reference.

16.4 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law the remaining provisions of this Agreement shall remain in full force and effect. 

16.5 Governing Law and Jurisdiction. This Agreement shall not be governed by the 1980 United Nations Convention on Contracts for the International Sale of Goods or by the Uniform Computer Information Transactions Act (UCITA); rather, this Agreement shall be governed by and construed under the laws of the State of Maryland without reference to conflict of laws principles. The parties each consent to the exclusive venue of the courts of competent jurisdiction in Baltimore County within the State of Maryland and waive any claim based on personal jurisdiction or forum non conveniens.

16.6 Modification. This is the entire agreement between the parties relating to the subject matter hereof and all other terms are rejected. No waiver or modification of this Agreement shall be valid unless in writing signed by each party. The waiver of a breach of any term hereof shall in no way be construed as a waiver of any other term or breach hereof.

16.7 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be an original, and which together shall constitute one and the same instrument.