These terms and conditions of sale (“Terms of Sale”) apply to any order of Sky-Hero
products (“Products”) placed (i) by a third party (such third party, “Buyer”), (ii) with SKY-HERO S.A, a Belgium corporation located at Place
Willy Devezon 4 boîte 3 7903 Leuze-en-Hainaut, Belgium (“Sky-Hero”), and (iii) accepted by Sky-Hero. Sky-Hero and Buyer are
referred to herein individually as “Party” and collectively as “Parties”.
1.1 Product Price is the one offered by Sky-Hero to Buyer and specified accordingly in the
applicable Order (as defined below).
1.2 Price is exclusive of any freight, handling
and shipping insurance charges. Price does not include any national, state or
local sales, use, value added, import, export or other taxes. Buyer shall pay
any such taxes, if applicable. Buyer shall bear sole responsibility for any
withholding tax liabilities, and no deductions shall be made by Buyer from the
amount payable to Sky-Hero under
any Sky-Hero’s invoice.
2. ORDERS AND ACCEPTANCE
2.1 Buyer shall purchase Products by issuing a purchasing
order indicating the Product’s quantity and unit price, total purchase price,
shipping instructions, requested shipping dates, bill-to and ship-to addresses,
and contract reference if applicable (“Order”).
2.2 Sky-Hero shall confirm its acceptance of the Order
within ten (10) business days from its receipt.
2.3 Any Order is not binding upon Sky-Hero until
accepted by Sky-Hero. The
cancellation of any Order confirmed by Sky-Hero is subject
to Sky-Hero’s prior written approval.
3.1 Sky-Hero will issue an invoice on the date the
Products are delivered or made available to Buyer, depending on the applicable
3.2 Payment shall be made by Buyer within thirty
(30) days net from the date of Sky-Hero’s invoice. All payments shall be in EUR, unless otherwise agreed in
writing. Buyer will be charged 1.5% per month (but not more than is permitted
under applicable law) on overdue accounts.
4. SHIPEMENT, DELIVERY, AND TITLE
4.1 Buyer understands that any delivery
scheduled is estimated only and is presented in good faith by Sky-Hero.
4.2 Sky-Hero shall deliver or made available the Products
to Buyer according to the applicable Incoterms. Risk of loss will pass to Buyer
according to the applicable Incoterms. Transfer of title is subject to full
payment of the price.
4.3 Delivery of a quantity that differs from the
quantity specified in the Order shall not relieve Buyer of its obligation to
accept delivery and pay the Products delivered.
4.4 Delays or changes in schedules due to Buyer
directed actions are subject to price adjustments.
4.5 SKY-HERO SHALL NOT BE LIABLE FOR ANY LOSS,
DAMAGE, OR PENALTY FOR DELAY IN SHIPMENT, DELIVERY, OR FOR FAILURE TO GIVE
NOTICE OF ANY DELAY.
5.1 Buyer shall notify Sky-Hero upon receipt of the Products of all discoverable defects, including
quantity shortages, incorrect product, and visible defects, but no later than seven
(7) days of receipt.
5.2 Buyer’s inspection and/or acceptance tests
shall not exceed the inspection and/or test procedures customary in the
industry for the goods furnished and are at Buyer’s expense.
returned Products shall be in original’s shipping packagings complete with all
5.4 In the event that Buyer does not either
complete final inspection and accept the Products or present a rejection notice
to Sky-Hero in writing within 30 days of delivery, the
Products shall be conclusively deemed accepted. At that time, Buyer’s only
recourse or remedy for non-conforming or defective goods shall be Sky-Hero’s
standard warranty as set out in Section
6. SKY-HERO WARRANTY
warrants that the Products are free from defect in materials and workmanship for
a period of twelve (12) months from the date of shipment to Buyer (“Warranty Period”).
express limited warranty set forth in Section 6.1 does not apply to, and Sky-Hero
makes no representations or warranties whatsoever with respect to any of:
defects which have been caused by normal wear and tear, or which have been caused
by misuse, moisture or liquids, proximity or exposure to heat, sun, accident,
excessive strain, negligence, abuse, misapplication, improper storage, improper
maintenance, repairs or modifications made by anyone other than Sky-Hero,
damage due to operation, damage due to drone crash, damage due to take-off,
landing location with obstacles, significant change in altitude, damage due to
loss of data radio connection, damage due to strong wind, rain or humidity, software
updates or other causes for which Sky-Hero is not answerable (individually and
collectively, “Warranty Exclusions”).
express limited warranty set forth in Section 6.1 applies provided that (a) Sky-Hero
is notified in writing by Buyer within thirty (30) days after discovery of
defects; (b) Buyer returns the defective Products to Sky-Hero at Buyer’s
expenses; (c) Sky-Hero receives the defective Products for adjustment no later
than four (4) weeks following the last day of the applicable Warranty Period;
and (d) Sky-Hero’s examination of such Products shall disclose that such
defects or failures have not been caused by any of the Warranty Exclusions. In
the event that any one or more of the foregoing conditions is not satisfied, Sky-Hero
shall have no liability under this warranty whatsoever.
6.4 Sky-Hero’s sole and maximum liability for
breach of the warranty stated in Section 6.1 is limited to the obligation, at Sky-Hero’s
sole discretion, to repair, replace or issue a credit note Buyer for its
purchase price of any Product delivered hereunder which is found by Sky-Hero to
be defective under the terms of this warranty. The terms of the express limited
warranty shall apply to any repaired or replacement Products supplied by Sky-Hero
for the remaining term of the relevant Warranty Period. BUYER
AGREES THAT THE EXPRESS WARRANTY SET HEREIN IS THE EXCLUSIVE REMEDY TO WHICH IT
IS ENTITLED AND WAIVES ALL OTHER REMEDIES, STATUTORY OR OTHERWISE. In the
event that the foregoing exclusive remedy under this warranty is determined
upon judicial or arbitral review to have failed in its essential purpose
through no fault of Buyer, the alternate exclusive remedy shall be the refund
of the purchase price of the defective Product. SKY-HERO’S OBLIGATION TO HONOR THE WARRANTY HEREIN IS CONTINGENT UPON SKY-HERO’S
RECEIPT OF PAYMENT IN FULL FOR THE PRODUCTS ENTITLED TO THIS WARRANTY.
6.5 SKY-HERO MAKES NO OTHER WARRANTIES, EITHER EXPRESS
OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY,
NON-INFRINGEMENT, SATISFACTORY QUALITY, ACCURACY, OR FITNESS FOR A PARTICULAR
PURPOSE, OR ANY EXPRESS OR IMPLIED WARRANTY ARISING OUT OF TRADE USAGE OR OUT
OF A COURSE OF DEALING OR COURSE OF PERFORMANCE.
6.6 Buyer shall not make any warranty commitment, whether written or
oral, on Sky-Hero’s behalf.
7. BUYER WARRANTY
7.1 Acceptance of Products is a
warranty by Buyer that Buyer is solvent as of the date of shipment.
7.2 Buyer warrants that it is buying the Products for its own use and
not for resale, unless otherwise agreed between Buyer and Sky-Hero under a
8.1 Sky-Hero will defend at its own expense any
claim against Buyer brought by a third party to the extent that the action is
based upon a claim that any Product infringes any third party intellectual
property rights and Sky-Hero will pay those costs and damages finally awarded
against Buyer by a court of competent jurisdiction or competent arbitration
court in any such action that are specifically attributable to such claim or
those costs and damages agreed to in a monetary settlement of such action.
8.2 Sky-Hero’s obligations in this Section are
subject to the conditions that: (i) Sky-Hero is notified promptly in writing by
Buyer of any claim; (ii) Buyer does not make any acknowledgement of liability
of which it seeks to be indemnified under this Section; (iii) Sky-Hero has sole
conduct, authority, and control of the defense and all negotiation for any
settlement or compromise thereof; and (iv) Buyer provides Sky-Hero with all
information and reasonable assistance to handle the defense or settlement of
8.3 Notwithstanding anything to the contrary
contained herein, Sky-Hero shall have no obligation to indemnify Buyer with
respect to any claim relating to, based on, or arising out of: (i) any
modification or servicing made to the relevant Product by Buyer or any third
party without Sky-Hero’s approval; (ii) the combination, integration,
application, operation or use of the relevant Product with any equipment,
device, apparatus, program, code or data that is not manufactured, provided,
indicated as being compatible with the Product or developed by Sky-Hero, and where such combination,
integration, application, operation or use is the object of the claim; (iii)
any use not intended by Sky-Hero; (iv) claims in issued patents that are
essential or necessary to implement an industry standard promulgated by a
recognized industry trade group or standard setting organization; and (v) Buyer’s
failure to use materials or instructions provided by Sky-Hero which would have
rendered the relevant Product or its use non-infringing.
8.4 Should the relevant Products become (or in Sky-Hero‘s
opinion be likely to become) the subject of any infringement claim, Sky-Hero
will have the option, at its sole discretion and expense: (i) to procure for Buyer
the right to continue using the relevant Product; (ii) replace the relevant
Product with a substantially equivalent non-infringing product; (iii) modify
the relevant Product so it becomes non-infringing; or (iv) terminate
immediately these Terms of Sale if solutions stated in (i), (ii), and (iii) are
not technically and/or commercially feasible or suitable.
Section states SKY-HERO’s entire liability, and BUYER’s sole and exclusive
remedy for any intellectual property rights claims relating the PRODUCTS.
9.1 TO THE EXTENT PERMITTED BY APPLICABLE LAW,
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY UNDER ANY
ORDER, SHEDULE OR TERMS AND CONDITIONS HEREIN (WHETHER SUCH LIABILITY IS BASED
ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OTHER TORT THEORY,
CONTRIBUTION, BREACH OF WARRANTY, OR OTHER LEGAL OR EQUITABLE THEORY) FOR ANY
SPECIAL, INDIRECT, IMMATERIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR
PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST PROFITS, LITIGATION COSTS, LOSS OF
DATA, PRODUCTION OR PROFIT, GOODWILL, LOSS OF REVENUE OR LOSS OF UNITS, LOSS OR INTERRUPTION OF BUSINESS, ARISING OUT
OF OR RELATING TO THIS TERMS OF SALE, EVEN IF THAT PARTY HAS BEEN ADVISED OF OR
SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. “IMMATERIAL DAMAGE”
REFERS TO ANY DAMAGE WHICH IS NEITHER PROPERTY DAMAGE NOR DEATH OR PERSONAL
9.2 TO THE EXTENT PERMITTED BY APPLICABLE LAW, SKY-HERO
SHALL NOT BE HELD LIABLE FOR ANY AND ALL DAMAGES ARISING FROM OR IN CONNECTION
WITH THE USE OR MISUSE OF THE PRODUCTS BY BUYER, ITS EMPLOYEES, CUSTOMERS AND
9.3 TO THE EXTENT PERMITTED BY APPLICABLE
LAW, SKY-HERO’S MAXIMUM AGGREGATE LIABILITY FOR ANY CLAIM SHALL NOT EXCEED THE
AMOUNT PAID BY BUYER FOR THE PRODUCTS DURING THE IMMEDIATELY PRECEDING TWELVE
9.4 THE FOREGOING LIMITATION OF LIABILITY SHALL
REMAIN IN FULL FORCE AND EFFECT REGARDLESS OF WHETHER BUYER’S REMEDIES
HEREUNDER ARE DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
9.5 NOTHING HEREIN SHOULD BE CONSTRUED AS
LIMITING OR EXCLUDING A PARTY’S LIABILITY IN CASE OF DEATH OR PERSONAL INJURY.
10. FORCE MAJEURE
A Party shall not be liable for delay
in performance or failure to perform in whole or in part the terms of the Terms
of Sale due to causes beyond the reasonable control of such Party. The period of performance for the Party
affected by such a cause shall be extended by the duration of the condition,
provided, however, if any such delay shall continue for more than thirty (30)
days from the start of the cause of delay, the quantities undelivered during
such period of delay or to be delivered, may be cancelled at Sky-Hero’s
election without liability of Sky-Hero to Buyer by written notice to Buyer at
11.1 “Confidential Information” means all
information, processes, know-how, ideas, specifications, and documentation
which either Party may have imparted to the other relating to the Products or
to Sky-Hero’s business or Buyer’s business and which relates to the subject
matter of these Terms of Sale and includes among others, the price, specifications,
and the design of the Products, information relating to the personnel,
policies, clientele or business strategies of either Party; and any information
relating to the terms upon which the Products are to be distributed under these
Terms of Sale and the Order.
11.2 For the period of ten (10) years following the
disclosure of Confidential Information, the parties shall refrain from
disclosing and prevent their employees, agents or legal successors from
revealing to any third party any Confidential Information regarding the other Party,
without its prior written approval.
12. EXPORT CONTROL
Buyer warrants that it will comply
fully with all applicable laws and regulations relating to export control,
including, without limitation EU and US export control laws. Buyer agrees to
accept all responsibility with that respect. Buyer’s failure to comply with the
terms of this Section shall constitute a material breach.
13. GOVERNING LAW
These Terms of Sale shall be construed
and interpreted in accordance with the laws of Belgium, without regards to its
conflicts of law. These Terms of Sale will not be governed by the U.N.
Convention on Contracts for the International Sale of Goods, the application of
which is expressly excluded by the Parties and does not apply to the
interpretation or enforcement of an order.
14.1 All disputes arising out of or in
connection with these Terms of Sale shall be submitted to the International
Court of Arbitration of the International Chamber of Commerce and shall be
finally settled under the Rules of Arbitration of the International Chamber of
Commerce (“Rules”) by three
arbitrators appointed in accordance with the Rules. The Rules are deemed to be
incorporated by reference into this Section 14.1. The seat of arbitration shall
be Brussels (Belgium). The language of the arbitration shall be English.
14.2 Notwithstanding the foregoing, in case of
an undisputed claim consisting in Buyer’s payment default under these Terms of
Sale, the arbitration clause stated in Section 14.1 will not apply and Sky-Hero
will be entitled to file a claim with any court of competent jurisdiction in
order to obtain payment of the amount due by Buyer.
Terms of Sale embody the entire understanding between the parties and supersede
all previous agreements, understandings or representations whether in writing
or orally regarding its subject matter. All agreed addition or modifications to
these Terms of Sale shall be made in writing and signed by duly authorized
representatives of both parties, failing which such modifications and
amendments shall be deemed null and void. Any terms or conditions contained in
any other document, which are in addition to or inconsistent with these Terms
of Sale shall be of no force and effect.
the event any one or more of the provisions contained herein shall for any
reason be held to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof, and these Terms of Sale shall be construed as if such invalid, illegal,
or unenforceable provision had never been contained herein.
15.3 The failure of a Party to enforce a provision,
exercise a right or pursue a default of these Terms of Sale shall not be
considered a waiver. The express waiver of a provision is to be effective only
in the specific instance, and as to the specific purpose, for which it was