1. TERMS & CONDITIONS.All proposals, purchase orders, and any change orders are explicitly subject to the following terms unless otherwise agreed to in writing, signed by both parties.2. AUTHORITY TO EXECUTE.Any individual agreeing to this Agreement represents and warrants that he or she is of legal age and has the authority and power to execute this Agreement on behalf of Buyer or Seller.3. ACCEPTANCE:This Agreement shall become binding at the time of Order Acknowledgement by Seller, which requires Purchaser’s signatures, or upon receipt of Purchaser’s first payment to Seller, whichever is earlier. Purchaser expressly assents to the terms and conditions in this Agreement, and agrees that in the event of any inconsistency between this Agreement and the Order Acknowledgement, proposal, purchase order, or any change order, this Agreement shall control, followed by any written addendum to this Agreement signed by both parties, followed by any other documents read together, unless Purchaser provides Seller written objection to the contrary promptly on receipt of this Agreement.4. ACCEPTANCE OF ORDERS.No order issued by Buyer shall be binding upon the Seller until accepted by the Seller via written acceptance. No terms and conditions in Buyer purchase order, acknowledgement form, or other document issued by Buyer which conflict with the conditions herein or increase the Seller’s obligation hereunder shall be binding on the Seller unless specifically identified and accepted in writing, executed by an officer of the Seller. Additional or different terms applicable to a specific transaction may be specified in a Seller Document or agreed to in a written contract signed by officers of both parties.5. PRICES.Pricing in Seller Documents is valid for 30 days from the date noted in Seller Documents. Pricing includes standard packaging and shipping via an LTL ground carrier, unless otherwise stated in Seller Documents. Seller’s price does not include any property, license, IP rights, privilege, sales, value-added, use, excise, or similar taxes that may be imposed by any government entity (including but not limited to federal, state, county, city/town).All Federal, State and local taxes and similar governmental charges (other than general property and net income taxes), including any interest or penalties thereon, now or hereafter imposed directly or indirectly on Seller or required to be collected directly or indirectly by Seller for the manufacture, production, sale, delivery, consumption or use of the equipment (“including, but not by way of limitation, sales, use, purchase, value added, gross income, excise, privilege and license taxes, surcharges and import and export duties”) shall be charged to and remitted by Purchaser to seller.6. PAYMENT AND INVOICE TERMS.Payment terms shall be as follows unless expressly stated otherwise in Seller Documents: 30% with order, 60% three (3) days prior to shipment, and the final 10% upon successful runoff at Buyer`s facility or 30 days after receipt of equipment (verified by carrier documents) – whichever comes first. These milestones are when invoices and payments are due, not when a net invoice term would begin from. The 30% with order will be invoiced immediately upon acceptance of Buyer Purchase Order and will be due upon receipt. The 60% three (3) days prior to shipment payment will be invoiced at time of order and due prior to shipment of goods. Any late payments on undisputed amounts may stop work and/or delay shipment, and will be subject to a late charge equal to the lesser of 1.5% per month or any part thereof of the highest applicable rate allowed by law on all such overdue amounts. Seller, in its sole discretion, may choose not to order components or begin work on Goods until the 30% upfront payment is received and deposited. Seller has no obligation to ship any Goods to Buyer until the With Order and Three (3) Days Prior to Ship payments have been received and deposited. If shipment is delayed by Buyer for more than 7 calendar days, all payments shall become immediately due and payable on the date Seller is prepared to ship the Goods. Delays in shipment, regardless of fault, shall not relieve Buyer of its obligation to pay. Seller accepts, ACH, or wire transfer payments. Buyer may, without limiting its other rights or remedies, offset any amount owed to it by the Seller against any amount owed by Buyer to Seller. Buyer may withhold payment to Seller, in whole or in part, to the extent reasonably necessary to protect Buyer from loss on account of any breach including, without limitation: (a) a violation of the law by Seller; (b) non-conforming or defective Equipment not remedied within a reasonable amount of time; (c) claims by a third party or evidence reasonably indicating the probable filing of claims (including, without limitation intellectual property claims, bodily injury claims, property damage claims and subcontractor payment claims); (d) the supply of counterfeit Equipment; (e) any cost for which Seller is responsible under this Agreement; or (f) a breach by Seller of any warranty of this Agreement. When the grounds for withholding payments are removed, payment of such withheld amounts shall be made. No interest shall be due or payable by Buyer on amounts withheld in good faith pursuant to this clause. Buyer may, at its reasonable discretion, backcharge and invoice to Seller all costs it incurs arising from or related to Seller's breach of this Agreement, namely all direct costs to correct, repair or replace non-conforming work not remedied by Seller, provided that Seller fails or refuses to cure such breach or non-conforming work within 10 days of notice from Buyer.7. SHIPMENT AND DELIVERY.Shipping terms shall be DDP Customer Facility (Incoterms 2020). Seller will take reasonable commercial efforts to ship the equipment within the timelines estimated in Seller Documents. Buyer understands and acknowledges that all scheduled shipment dates and lead times are estimates only. In no event will Seller be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery. Seller shall notify Buyer immediately if it appears that Seller may not meet the delivery schedule and shall set forth the reasons for the delay (actual or potential), the steps being taken to remedy the delay, and the schedule that Seller believes it will be able to meet. Buyer’s receipt of notice shall not constitute approval of the delay or the proposed revised delivery schedule or a waiver of the delivery schedule in the Agreement. Delivery shall not be deemed complete until all conforming Equipment have been actually received by Buyer at the destination specified in the Agreement. Seller shall cause the equipment to be insured with a responsible insurance company against all loss and damage until title and risk of loss have been transferred to Buyer (per below clause).8. TRANSFER OF TITLE AND RISK OF LOSS.Title and risk of loss or damage for the Goods shall transfer from Seller to Buyer when the Goods are unloaded at Buyer facility. Where permitted by law, the Seller retains a security interest in products sold until full payment is received. In the event of rejection or revocation of acceptance of any Goods, all risk of loss of or damage to such Goods shall shift to Seller upon any such rejection or revocation of acceptance, provided Buyer uses reasonable commercial methods to store the Goods until loaded by Buyer or its agent.9. WARRANTY AND REMEDY.The warranty period for new Goods provided by Seller is 12 months from date of shipment unless otherwise stated in Seller Documentation. This warranty is non-transferrable and non-assignable. Seller warrants that Goods shall be delivered in strict accordance with Seller Documents and free of defects in material and workmanship. This warranty shall not apply to consumable/expendable components; such as contact tips, gas nozzles, liners, cables, casings/conduits, spatter disc/gas diffusers, collets, inlet guides, drive rolls, or parts that fail due to normal wear and tear. Any Good or component to a Good that is manufactured by a third party is warranted only to the extent of the third party’s warranty, and only the remedies, if any, provided by that third party shall apply. If a nonconformity is discovered in the Goods during the warranty period and written notice of the nonconformity is provided to Seller promptly after discovery and within the warranty period, Seller’s obligation shall be, at its option, to either (i) repair/replace the nonconforming portion(s) of the Goods; (ii) order and ship repair/replacement parts to Buyer; or (iii) refund the portion of the price applicable to the nonconforming portion of Goods or Services. Seller, at its option, may also choose to subcontract warranty repair/replacement work to a third party. All nonconforming Goods are subject to a warranty inspection. This warranty shall not apply to goods that have been altered or repaired without Seller’s direction, or have been subject to misuse. This warranty shall be void if incorrect input power is supplied to the Goods or if the isolating mount plates are not used or are used improperly. Seller makes no other warranty of any kind, whether express or implied, including, but not limited to the warranties of merchantability or fitness for a particular purpose. The remedies stated herein constitute Buyer’s exclusive remedies and Seller’s entire liability for any warranty matters or claims.10. LIABILITY.Notwithstanding anything in this Agreement or otherwise to the contrary, Buyer’s sole and exclusive liability and obligation to Seller is the payment of undisputed amounts for the Goods in accordance with the terms of this Agreement. Seller waives and releases any and all other actual and potential claims, rights or remedies against Buyer related to the Goods including any for special, indirect, incidental, consequential, exemplary or punitive damages whether in contract, warranty, tort, negligence, strict liability or otherwise, including, but not limited to, injury, loss of profits or revenue.11. INDEMNIFICATION.To the fullest extent permitted by law, Seller agrees to indemnify, defend, and hold harmless the Buyer, its officers, employees, affiliates, third parties including but not limited to subcontractors, and agents from and against any and all claims, demands, obligations, damages, liabilities, losses, fines, and costs of any type (including, but not limited to, attorneys’ fees, loss of profit, business interruption, other special or consequential damages, damages arising from or relating to property damage, bodily injury or damages relating to wrongful death) arising out of or related to (i) Seller’s performance of this Agreement; or (ii) Seller’s or Seller’s contractors’, subcontractors’, representatives’ or agents’ acts or omissions under this Agreement, including without limitation the delivery of the Goods that are defective, non-conforming, or that otherwise fail to comply with Seller’s warranties as set out in this Agreement. In furtherance of, but not in limitation of the indemnity provisions in this Agreement, Seller expressly and specifically agrees that the foregoing obligation to indemnify shall not in any way be affected or diminished by any statutory or constitutional limitation of liability or immunity Seller enjoys from suits by its own employees. The Seller’s duty to indemnify will continue in full force and effect notwithstanding the expiration or early termination of this agreement.12. PATENT INDEMNIFICATION.Seller hereby indemnifies Buyer and its directors, employees, agents, and officers, as well as their respective successors, assigns, and heirs, against all and any damages that arise or result from claims of patent infringement related to the Goods in their original condition brought by a third party subject to limitations as found in this Agreement. In the case of a claim of infringement of intellectual property rights, if the use of any portion of the equipment provided hereunder is enjoined as a result of any suit, then Seller, at no expense to Buyer, shall either procure the right for Buyer to continue using the equipment or replace or modify the equipment so that they become non-infringing and are of equivalent or superior functionality as determined by Buyer in its sole discretion. If neither of the foregoing alternatives is available on terms which are acceptable to Buyer, Buyer may return all or any part of the equipment, at Buyer’s sole option, for a full refund of the total amounts paid for the affected equipment, and assert all other remedies available to Buyer under this Agreement or under controlling law.13. CANCELLATION:This Agreement may not be cancelled except upon 30 days prior written notice by Purchaser delivered to Seller. Upon cancellation of this Agreement, Purchaser shall be responsible to Seller for all costs of cancellation, including, without limitation (1) the proportionate contract price for all material and labor completed as of the date of cancellation, whether shipped or not; (2) all costs incurred by Seller in connection with material not completed at the time notice of cancellation is received; (3) Seller’s full anticipated fee and/or profit for this Agreement or Project; (4) all expenses incurred by Seller by reason of such cancellation, including costs arising from termination of subcontractors and vendors; (5) Seller’s reasonable attorney’s fees incurred to enforce or defend the provisions of this Agreement.If Seller deems it necessary to cancel this Agreement, Seller will provide written notification to the Purchaser. Costs will not accrue beyond the date of the letter of cancellation. All funds not invested in value added engineering, labor, and materials will be refunded to Purchaser upon Seller’s termination. All materials and manufactured goods shall be released to customer, upon full payment for cost incurred up to the point of termination. Seller shall not include charges for profit for work completed on the project, in the event Seller deems it necessary to cancel the Agreement.14. INVENTIONS.All inventions (whether or not patentable), trade secrets, trade names, trade or service marks, works of authorship, discoveries, ideas, and/or concepts created or prepared by Seller under this Agreement, together with any and all intellectual property rights therein are the sole and exclusive property of the Seller. Seller shall have the right, at its option and expense, to seek protection of the inventions by obtaining patents, copyright registrations, and filings related to proprietary or intellectual property rights. Seller hereby agrees to grant to Buyer an irrevocable, royalty-free, fully paid-up, non-exclusive license to all intellectual property owned or controlled by Seller to the extent necessary for the installation, operation, maintenance, repair or alteration of the equipment. Buyer may reproduce any submittals received from Seller that are considered necessary for engineering, construction, start-up, operations, maintenance, or other purposes related to the equipment.15. CONFIDENTIAL INFORMATION.As used herein, “Confidential Information” shall mean all information in whatever form which is disclosed by either Party to the other Party prior to or subsequent to the execution of this Agreement, including but not limited to information relating to products, operations, processes, plans, intentions, engineering drawings, 3D CAD models, patents, know- how, trade secrets, or other material disclosed by one Party to the Other Party. Both Buyer and Seller shall treat each other’s Confidential Information as confidential; shall not use such Confidential Information except in connection with the Agreement; shall not disclose such Confidential Information to any third party, and shall not reverse-engineer Goods and/or Software. Both Parties acknowledge that breach of this clause may cause irreversible and irreparable harm, that monetary damages may not be an adequate remedy, and that both Parties reserve the right to seek and obtain injunctive relief in addition to any other remedy that may be available. If a separate Mutual Non-Disclosure Agreement has already been executed, that separate agreement supersedes this single clause of this Agreement.16. GOVERNING LAW.In the event of any dispute arising out of or relating to this Agreement, Seller and Buyer shall seek to resolve the dispute in good faith through mutual discussions. If the dispute cannot be resolved through mutual discussions, either party may commence an action to resolve the dispute in the Federal or State courts of Tarrant County, state of Texas, of the United States of America. This Agreement and any transactions arising therefrom shall be governed and construed under the laws of the State of Texas, as applied to contracts entered into and performed in that State, specifically excluding any conflict or choice of law provisions. In the event of any litigation action between the Parties concerning this Agreement, the prevailing party shall be entitled, in addition to any awarded remedy, to collect from the other party all reasonable fees and expenses incurred in such action, including attorney’s fees.17. SEVERABILITY.If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall not in any way be affected or impaired thereby.18. ASSIGNMENT.Neither party shall assign this Agreement unless the other party consents in writing, which shall not be unduly withheld.19. ENTIRE AGREEMENT / ONLY AGREEMENT.The Agreement, including these Terms and the Seller Documents, constitute the entire agreement between Buyer and Seller with respect to the transaction of goods. There are no oral or other representations or agreements not included herein. None of Seller’s rights or Buyer’s rights may be changed and no extension of the terms of this Agreement may be made except in writing, signed by agents of both Buyer and Seller.
Abagy Robotic Systems Inc.6200 Savoy Dr., Houston, TX, 77036Tel: +1 281 803 8187