The entire agreement (the “Agreement”) between Construction Robotics, LLC (“Seller”) and the buyer (“Buyer”) listed on the accompanying offer and quotation (the “Quote”) for the sale of the goods listed in the Quote (the “Goods”) consists of the Quote and the following documents listed in the Quote and shall be interpreted and enforced in the following order of priority:
a. the Quote or Offer including special terms and conditions;
b. these General Terms and Conditions (“Terms”);
c. Safety Certification; and
d. Construction Robotics Limited Warranty.
The Agreement comprises the entire agreement between the parties, and supersedes all prior or contemporaneous understandings, agreements, and communications, both written and oral. This Agreement takes precedence over Buyer’s additional or different terms and conditions, to which notice of objection is hereby given. Acceptance by Buyer is limited to this Agreement. Neither Seller’s commencement of performance nor delivery shall be deemed or construed as acceptance of Buyer’s additional or different terms and conditions.
Seller’s receipt of a Purchase Order from Buyer without written objection thereto shall constitute acceptance by Buyer of this Agreement and the terms and conditions set forth therein.
- Shipping and Delivery.
Buyer shall be responsible for shipping the Goods to the delivery location set forth in the Purchase Order. Buyer shall pay all costs of shipping and unloading costs, and shall provide equipment and labor reasonably suited for receipt of the Goods at the delivery location. The Goods will be delivered within a reasonable time after Seller’s receipt of the Purchase Order. At the request of the Buyer, Seller shall arrange for shipping the Goods to the delivery location. Seller shall not be liable for any delays, loss or damage in transit.
- Title and Risk of Loss.
The Goods shall be delivered EXW to a common carrier at Seller’s facility in Victor, NY, at which point title to, and risk of loss of, the Goods passes to Buyer.
- Amendment and Modification.
This Agreement may only be amended or modified in a writing signed by an authorized representative of each party.
- Inspection and Rejection of Nonconforming Goods.
a. Buyer shall inspect the Goods upon receipt. Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods within three days following such receipt and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in the Quote; or (ii) product’s label or packaging incorrectly identifies its contents.
b. If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the price for such Nonconforming Goods. If Seller exercises its option to replace Nonconforming Goods, Seller shall ship to Buyer, at Seller’s expense and Buyer’s risk of loss, the replaced Goods to the delivery location.
c. Buyer acknowledges and agrees that the remedies set forth in Section 6(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 6(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
d. If Goods are visually damaged, Buyer must have written confirmation of the damage noted by the agent of the carrier on the freight bill or other receipt. Signing a receipt without such notification of damage to the Goods shall constitute conclusive evidence of receipt of the Goods in satisfactory condition. Any claim of damage in transit should be promptly made by Buyer against the transportation company.
Buyer shall purchase the Goods from Seller at the prices set forth in the Quote (the “Purchase Price”). The Purchase Price will remain valid for sixty (30) days from the date of the Quote. The Purchase Price is exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority. Buyer shall be responsible for all such charges, costs and taxes.
- Payment Terms.
a. Buyer shall make payments to Seller under this Agreement, in the amounts and in accordance with the quote.
b. Buyer shall make all payments hereunder in US dollars. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, reasonable attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder.
c. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
a. EXCEPT FOR THE WARRANTY SET FORTH IN THE ‘CONSTRUCTION ROBOTICS LIMITED WARRANTY’ THAT IS A PART OF THIS AGREEMENT, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
b. THE REMEDIES SET FORTH IN THE CONSTRUCTION ROBOTICS LIMITED WARRANTY THAT IS A PART OF THIS AGREEMENT SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE AGREEMENT.
c. WARRANTY IS NOT TRANSFERRABLE.
- Limitation of Liability.
a. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS (INCLUDING ANY DELAYS IN DELIVERING THE GOODS), WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
b. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY REASON EXCEED THE AMOUNT PAID BY BUYER UNDER THIS AGREEMENT, EXCEPT IN THE CASE OF SELLER’S GROSS NEGLIGENCE.
Buyer shall have exclusive management and control of the Goods upon Seller’s delivery of the Goods to a common carrier at Seller’s facility in Victor, NY. Buyer will be solely responsible for assuring proper use, maintenance, carrying and care of equipment. Seller shall not be liable for any injuries, damages, claims or expenses caused by omissions, alteration or removal of or tampering with any safety device or any other device or part of equipment, nor improper operation (including by any individual not certified by Seller or Seller’s Distributors to operate the Goods), nor improper attachment of parts or sections to the equipment, failure to follow manufacturer’s installation and maintenance instructions, failure to properly maintain and repair equipment, substitution of parts other than those supplied or recommended by Seller, or any negligence, abuse or misuse of equipment. Buyer agrees to defend, indemnify and hold Seller harmless against such injuries, damages, claims or expenses, including reasonable attorney’s fees, by whomsoever asserted.
- Compliance with Law.
Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability), workers’ compensation, in amounts customary in the industry in which it operates with financially sound and reputable insurers. Upon Seller’s request, Buyer shall provide Seller with a certificate of insurance from Buyer’s insurer evidencing the insurance coverage specified in these Terms.
In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. In the event Seller terminates this Agreement for the reasons set forth in this Section or Buyer terminates this Agreement for any reason, in respect of the costs incurred by Seller in manufacturing the Goods, Seller shall retain as a termination fee the twenty percent (20%) down payment paid by Buyer.
No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Confidential Information.
All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be used, disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. Seller retains for itself all of its intellectual property rights in the Goods and any supporting documentation supplied hereunder, including but not limited to all designs, engineering details, and other data pertaining to the Goods, and nothing herein shall operate to sell, assign, license, transfer or otherwise grant any rights to any such intellectual property to Buyer. Unless otherwise agreed to in writing by Seller, copyrighted materials supplied by Seller including all software and printed materials, may not be copied for any reason.
- Force Majeure.
Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities, terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes.
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void.
- Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
- Governing Law.
All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule.
- Submission to Jurisdiction.
Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of New York, in each case located in Monroe County, New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
All notices, request, consents, claims, demands, waivers and other communications hereunder shall be in writing and addressed to the parties at the addresses set forth on the face of the Quote or to such other address that may be designated by the receiving party in writing. All notices shall be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the notice has complied with the requirements of this Section.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order.
- Equal Opportunity Statement.
Buyer agrees to be bound by and comply with the requirements of 41 CFR Section 60-1.4(a)(7), 60-250.5,60-300.5 and 60-741.5, if applicable.