QUOTATION AND SALE
SCOPE AND DEFINITIONS
These Terms and Conditions (“Terms”) apply to all quotations made and sales agreements entered into by ARA ROBOTICS INC. (“Seller”) with a Buyer for products (the “Products”). Moreover:
Unless Seller and Buyer enter into a separate written agreement, formally executed by Seller and specifically waiving the terms set forth herein, the purchase of any Products by Buyer shall be deemed acceptance of these Terms.
No provisions in any documentation employed by or on behalf of Buyer in connection with these Terms, regardless of the date of such documentation, will affect these Terms, even if such document is accepted by Seller, with such provisions being deemed deleted.
Seller’s agreement to sell or otherwise deliver any Products to Buyer shall not be deemed or construed to be an acceptance of any of Buyer’s terms and conditions nor a waiver of any term set forth herein.
Unless otherwise indicated, quotations are open for acceptance by the Buyer within thirty (30) days from the date of quotation. All prices are quoted in U.S. Dollars or as indicated on the quotation.
ORDERS AND CANCELLATION
All of Buyer’s orders are subject to acceptance by Seller and Seller reserves the right to accept or reject any order from the Buyer, in whole or in part. Any acceptance or refusal of an order by the Seller will be communicated to the Buyer by email (firstname.lastname@example.org), no later than 24 hours of reception by Seller of payment confirmation of the Buyer’s order.
Orders accepted by Seller can only be cancelled for Buyer’s convenience by providing written notice to the Seller by email indicating whether the cancellation covers the entire order or specific Products. If at the time of receiving the cancellation request, the order have not yet been shipped by the Seller, the Seller, within five (5) business days of the date of the cancellation request, will refund the Buyer either (a) the amount of the order with taxes if charged and the shipping charges if these have been paid by the Buyer to the Seller at the time of order; or (b) the purchase price of the cancelled Product(s) with taxes if charged. The refund mode will be the same as the one used when paying the order. If the order is not canceled in full, non-canceled Products will be shipped by the Seller in accordance with these Terms.
If at the time of receiving the cancellation request, the order have been shipped by the Seller and that the Purchaser still wants to cancel the sale, he must then avail himself of the 30-day Return and Refund Policy and comply with the conditions described in section ’’Returns’’ of the Terms and in the said policy.
TITLE, DELIVERY AND INSPECTION
All deliveries will be made FCA (per Incoterms 2010) Seller’s facility or other location determined by Seller. Unless otherwise specified, risk will pass to Buyer upon tender to the carrier. Buyer bears the exclusive risk of loss or damage to the Products at all times after Seller has delivered such Products to the carrier. In the event of shipping damage, Seller must be notified in writing by the Buyer, within three (3) business days of shipment receipt. Buyer must hold all Products and packing materials intact until further disposition is provided by Seller in writing.
Seller will make commercially reasonable efforts to ship orders within the times quoted may make partial shipments. Buyer acknowledges that all delivery times or shipment dates are approximate and may change. Times quoted for shipment will date from receipt by Seller of the Buyer’s order accompanied by all necessary information, together with reception of the payment confirmation and, if applicable, any import license and/or permits which may be necessary. Buyer acknowledges that time for delivery is not of the essence and accepts that Seller shall not be liable for any loss or damage ensuing from late delivery.
Inspection: Within three (3) business days after receipt of the shipment of the Product, Buyer shall inspect the shipment for obvious damage to or violation of the shipping packaging. Buyer shall also confirm that the type and quantity of the Products received are consistent with the type and quantity specified on the related shipping documents and order. Buyer shall promptly notify Seller of any discrepancies in accordance with the terms hereof. If a notice of discrepancies is not received by the Seller within three (3) days after receipt of the shipment by the Buyer, the shipment shall be deemed to have been completely and correctly fulfilled, and all claims by the Buyer shall be deemed waived and released, except for any Product defect that a visual inspection would not disclose.
To guarantee its legal rights, Buyer should check whether the Product received is intact (check whether any damage has occurred to the Product during transportation) before signing the carrier’s acknowledgment of receipt.
TAXES AND DUTIES
The Buyer shall pay all taxes (including, without limitation, any and all federal, provincial, state or local sales, use, excise, privilege or similar taxes), levies, tariffs or duties, of any kind (collectively, the “Taxes”), on the Products, or the Buyer shall provide Seller with a tax exemption certificate acceptable to the taxing authorities. Buyer agrees to indemnify and hold harmless Seller for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon.
If the Products sold are exempt from Taxes, the applicable exemptions will be respected by the Seller as long as these exemptions are maintained in force by the competent authorities. In the event of the cancellation of any Taxes exemptions with respect to any Product sold, the Buyer’s obligation described in paragraph one of this section, ‘’Taxes and Duties’’, regarding the payment of Taxes will apply immediately to the purchase of any said Product.
The prices of the Products are those specified in the applicable order. Unless otherwise agreed in writing by Seller, all prices quoted are exclusive of Taxes, transportation and insurance costs.
All orders must be prepaid in full at the time of order by credit card, check or bank transfer.
Subject to the conditions herein, Seller will defend any action brought against the Buyer, to the extent that it is based on a claim that the Products supplied by Seller infringe an existing Canadian or U.S. patent issued on the date of the applicable order. Subject to the conditions herein, Seller will indemnify Buyer against the costs and damages finally awarded in any action arising directly out of a claim of infringement of such Canadian or U.S. patent, provided that:
Seller shall be notified in writing by the Buyer within ten (10) days of the receipt by the Buyer of any notice of such claim;
Seller shall have sole control of the defence of any action and all negotiations for its settlement or compromise, and Buyer shall cooperate with Seller and take all required action to assist Seller in such defence;
The claim relates directly to the use of the Products in a manner or for a purpose expressly specified by Seller;
The claim does not arise from the alteration or modification of the Products or the use of the Products in combination with the products or services of any party other than Seller;
The claim is not related to aspects of the Products that were made in accordance with materials, designs or specifications furnished or designated by Buyer; and
That the Buyer shall not have made and shall not make any admissions in respect of such alleged infringement.
The sale of Products by the Seller can not at any time or in any way have the effect of granting the Buyer a license in respect of any patent, copyright, trade secret, trademark or other intellectual property right covering combinations of such Products with other devices or elements, unless otherwise provided by a specific written agreement signed by the parties.
Notwithstanding the foregoing, Seller has no liability for, and Buyer will indemnify Seller against, any claim based upon:
The combination, operation, or use of any Products supplied hereunder with, equipment, devices, or software not supplied by Seller;
Services offered or used by Buyer through operation of the Products or revenue received by Buyer from its services;
Alteration or modification of any Products supplied hereunder; or
Seller’s compliance with Buyer’s designs, specifications, or instructions, as the case may be.
Notwithstanding any other provisions hereof, Seller shall not be liable for any claim based on Buyer’s use of the Products as shipped after Seller has informed the Buyer of modifications or changes in the Products required to avoid such claims and offered to implement those modifications or changes if such claim would have been avoided by implementation of Seller’s suggestions.
To the extent the Products or any part thereof become the subject of a claim for infringement or the use of the Products or any part thereof is enjoined in an infringement suit, Seller may, at its sole option and expense, defend the claim, procure for the Buyer the right to continue using said Products, replace or modify the Products so that they become non-infringing, and/or remove said Products and refund the purchase price and the shipping return costs thereof less a reasonable amount for depreciation.
The foregoing states the entire liability of Seller with respect to any infringement or claim of infringement of any patent, copyright, trade secret, trademark or other industrial or intellectual property right. The foregoing indemnity is granted to Buyer solely for its benefit.
Seller warrants that it has title to the Products and that the Products generally conform to the descriptions in its documentation. Seller warrants that the Products will be free from defects in material and workmanship for a period of twelve (12) months commencing on the date of shipment by the Seller. Seller shall incur no liability under the foregoing warranty unless:
The allegedly defective Products are returned prepaid to Seller within fifteen (15) days of the discovery of the alleged defect in accordance with Seller’s then current returns and repair procedures; and
Seller’s tests disclose that alleged defect is due solely to defects in material or workmanship. This warranty is personal to Buyer only and shall not extend to any third party.
The liability of Seller under this warranty shall, in any event, be limited at Seller’s option to either repair, or replacement of the defective Products at its own expense. The provision of any warranty does not apply to any Products that have been:
used for a purpose for which they were not designed;
altered in any manner;
used in any way as to adversely affect their performance and reliability;
subject to misuse, abuse, neglect, alteration, accident, repair, operation outside the environmental specifications for the Products, improper installation, improper handling during or after shipment, improper testing or the like after shipment;
affected by any other cause not attributable to defects of material or workmanship on the part of Seller.
Without limiting the terms of this Section, the following list presents situations where the benefit of the Seller’s limited warranty for repair or replacement will not be granted to the Buyer:
The Buyer shall assume all responsibility and expense for dismantling, removal, re‐installation and shipping of a Product in connection with this warranty. The same obligations and conditions extend to repaired or replacement Product furnished by the Seller hereunder. All defective or failed Product and parts replaced by the Seller under this warranty shall become Seller’s property.
To obtain the Seller’s limited warranty performance, the Buyer must comply with the instructions contained in the Limited Warranty Repair or Replacement Policy. All the provisions of the Limited Warranty Repair or Replacement Policy are deemed to be an integral part of this Section of the present Terms. Charges may apply for services not covered by this Limited Warranty.
To the extent permitted by applicable law, the limited warranties contained in this section are Seller’s exclusive warranties and are in lieu of all other warranties, conditions, representations, undertakings or terms of any kind, express or implied, written or oral, arising by statute, operation of law, course of dealing, usage of trade or otherwise including, but not limited to, warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, satisfactory quality, title and/or lack of workmanlike effort. Seller does not warrant that the products will be free of error, viruses, or that their operation will be uninterrupted or will accomplish any particular result. Should such warranties not be disclaimed, the seller limits the duration and remedies of such warranties to the duration of this limited warranty and, at Seller’s option, the repair or replacement services provided in this limited warranty.
To the extent permitted by applicable law, Buyer acknowledges and agrees that third party products may constitute, contain, be contained in, incorporated into, attached to, or packaged together with a seller’s product. Third party products are provided “as is” by the Seller and are not covered by the limited warranty set forth in this section. for the avoidance of doubt, Seller makes no representations or warranties with respect to any third-party product, including any warranty or merchantability, fitness for a particular purpose, satisfactory quality, title and/or lack of workmanlike effort, or against infringement of intellectual property rights of a third party, whether express or implied by law, course of dealing, usage of trade, or otherwise. Buyer shall be entitled to all warranties provided directly by the Manufacturer of such third-party products to end users. buyer shall pursue all claims related to third party products with the applicable Manufacturer and does hereby irrevocably release seller from any such claims.
No Products are to be returned without written authorization from Seller (Return Merchandise Authorization/RMA) and then only in accordance with Seller’s terms and instructions. A 30-day Return and Refund Policy is only applicable for the Buyer of the Products. Returns must be requested in writing to email@example.com, within thirty (30) days of receiving the Product. Buyer must obtain from Seller a Return Merchandise Authorization (RMA) number that must be clearly marked on the outside of the return package. All returns must be in “like new” condition and complete with all packaging and accessories (if applicable), otherwise a 15% restocking fee will apply. The Buyer must comply with the instructions contained in the 30-day Return and Refund Policy. All the provisions of the 30-day Return and Refund Policy are deemed to be an integral part of this Section of the Terms.
The Seller shall at all times have and retain title and full ownership of all software, firmware, programming routines, and documentation relating to such software supplied by the Seller for use with the Products.
Seller grants the Buyer a non-exclusive, non-transferable license to use the software incorporated into or associated with the Products solely for the purpose of operating and managing the Products. Buyer is prohibited from selling the software or sharing the software with Seller’s competitors or any other third-party. Buyer is further prohibited from copying, modifying or otherwise altering the software. Buyer is advised and acknowledges that the software associated with Seller’s Products may contain protected trade secrets, which the Buyer is precluded from disclosing. The Buyer shall not disassemble, decompile or reverse engineer the software nor permit any third-party to do so. Seller reserves all rights in the software not expressly granted to the Buyer by this limited license.
Seller may periodically issue upgrades for its software, which will be made available to the Buyer subject to the terms of the license described above. Unless otherwise agreed by the parties, Seller reserves the right to charge for some or all of its software-related upgrades.
INTELLECTUAL PROPERTY RIGHTS
Buyer acknowledges the great value of the goodwill associated with the name and trademarks of the Seller. Buyer shall not obscure, effect or permit the removal or alteration of any patent numbers, trade names or marks, copyright markings or other proprietary rights markings, labels, serial numbers, or the like affixed to any Product or Product package. Buyer disclaims any rights or interest in Seller’s intellectual property.
All intellectual property rights, including, without limitation, all copyrights, patent rights, trade secrets and trademarks in and to the Products shall, at all times, remain with Seller. Buyer shall acquire no right whatsoever to all or any part of the Products and/or Seller intellectual property except the right to use the Products and/or Seller intellectual property in accordance with these Terms and Seller reserve all rights not expressly granted to Buyer.
LIMITATIONS OF LIABILITY
To the extent permitted by applicable law, in no event and under no circumstances and under no legal theory, tort (including strict liability and negligence), contract or otherwise, shall seller and its affiliates and subsidiaries, including their respective employees, directors and officers be liable to buyer or any third-party (person or entity) for any loss of use, revenue, business or profit, lost or damaged data, failure to realize expected savings, or other commercial or economic loss or for any other indirect, incidental, special, punitive, exemplary or consequential damages whatsoever, even if advised of the possibility of such damages or if such damages are foreseeable. this disclaimer shall apply even if the warranty set forth in section “Warranty” fails of its essential purpose.
The maximum aggregate liability of Seller and its affiliates and subsidiaries, including their respective employees, directors and officers in any connection with these terms and/or the products, whether in tort (including strict liability and negligence), contract or otherwise shall not exceed the amount paid by the Buyer for the specific item or product that is the subject matter of or that is directly related to such claim.
Notwithstanding anything in these terms to the contrary, the foregoing limitations of liability shall not apply to Seller’s gross negligence or wilful misconduct. Moreover, the foregoing limitations do not apply to damages for bodily injury (including death), and moral injury.
INDEMNIFICATION BY THE BUYER
Buyer agrees to indemnify and hold the Seller and its affiliates and subsidiaries, including their respective employees, agents, directors and officers harmless from and against all liability, loss, damage, costs and expenses including, but not limited to, costs and expenses of litigation and reasonable legal fees, that Seller may incur arising out of (A) Buyer’s non-compliance or breach of these Terms and any representation contained in these Terms; (B) any infringement or alleged infringement of any license, patent, copyright or any other intellectual property right; and (C) any personal injury (including death) and property damage connected with the handling, transportation, possession, processing, repackaging, further manufacture, installation or resale of the Products, whether the Products are used alone or in combination with any other material or equipment; and (D) injury (including death) to any person or damage to any property occurring as a result of, or caused in whole or in part by, acts or omissions of Buyer or its agents, officers, directors, employees, any subcontractor or its employees, or any person, firm or corporation employed or engaged by the Buyer. Buyer hereby waives and releases the Seller from any rights of recovery, claims, actions or causes of action that the Buyer may have against the Seller with respect to events mentioned in (A), (B), (C), (D) above and for which the Buyer has agreed to indemnify the Seller. Buyer shall not be liable to the Seller for loss, damage, costs and expenses which are the direct result of the gross negligence or intentional misconduct of the Seller.
The parties acknowledge that they may receive confidential and/or proprietary information relating to the business of the other party, including without limitation designs, presentations, drawings, schematics, software tools, software, user interface designs, architecture, objects and documentation (both printed and electronic), technical information, design rules, physical descriptions or views, proprietary command architecture, proprietary scheme constructs, proprietary circuit behaviour information, circuit, logic elements, technical and marketing information, know-how and/or trade secrets, which are identified as confidential and/or proprietary at the time of disclosure or that a reasonable person would consider, from the nature of the information, as confidential and/or proprietary (the “Confidential Information”). The parties will only use such Confidential Information in the performance of these Terms. The receiving party shall treat the Confidential Information as confidential to and as the property of the disclosing party and use a degree of care not less than the degree of care it uses with respect to its own information of like nature to prevent unauthorized access, use or disclosure, which in any event shall be no less than a reasonable degree of care. The receiving party will not disclose these Terms or Confidential Information, except to the receiving party’s directors, officers, employees and contractors who have a need to know for the purpose of carrying out the business relationship and who are bound by written confidentiality obligations no less protective of the disclosing party’s confidential information than this Section. As soon as practicable, receiving party shall notify disclosing party of any breach of these Terms. Each party will use and maintain reasonable security measures (which measures shall be at least those used by the receiving party to protect its own Confidential Information) to protect the other party’s Confidential Information. The receiving party shall not transmit, maintain, remanufacture or duplicate all, or any part of, the Confidential Information except in accordance with the terms and conditions of these Terms. The receiving party shall be directly liable for the acts or omissions of its directors, officers, employees and contractors with respect to such confidentiality obligations. The receiving party agrees to segregate all such Confidential Information from the confidential information of others in order to prevent commingling.
The foregoing obligation of confidentiality does not apply to information that: (a) is or becomes generally known or available through no fault of the receiving party; (b) is known by the receiving party prior to the time of disclosure and is not subject to restriction, as evidenced by receiving party’s written records; (c) is independently developed by the receiving party, as evidenced by receiving party’s written records; (d) is lawfully obtained from a third party, who has the right to make such disclosure without restriction; (e) is released for publication by disclosing party in writing; or (f) is required to be disclosed by law.
Buyer acknowledges that disclosure or use of the Confidential Information contrary to these Terms will cause Seller irreparable harm for which damages may not be an adequate remedy and further acknowledges that in addition to any other remedies that may be available to Seller at law, Seller may apply for all available relief including injunctive relief.
These Terms are the entire agreement between the parties with respect to its subject matter and supersedes and replaces all prior oral or written agreements, representations, negotiations or understandings between the parties relating to such subject matter. No change, modification, supplement or amendment of these Terms shall be valid or binding unless (a) executed in writing by both parties and (b) such document specifically references the changing, modifying, supplementing or amendment of these Terms.
Buyer may not transfer or assign these Terms without the prior written consent of Seller. The parties agree that Seller is hereby entitled to assign, subcontract and/or transfer all or part of its rights and obligations under these Terms to any third party. A change in control of Buyer shall be deemed an assignment hereunder.
GOVERNING LAW AND COURTS
The validity, construction and performance of these Terms and Conditions and the quote and sales related thereto shall be governed by and interpreted in accordance with the laws of the Province of Québec without regard to its provisions concerning the applicability of the laws of other jurisdictions. The United Nations Convention on Contracts for the International Sale of Goods and any legislation implementing such convention, if otherwise applicable, shall not apply to any order or sale. For all litigation arising out of any disputes between the Buyer and the Seller, the Buyer and the Seller consent to the exclusive jurisdiction of the Courts of the Province of Québec–district of Montréal ‐ and agree that any and all such litigation will be determined exclusively by such Courts. However, notwithstanding the above, the Buyer agrees and consents that the Seller may, at its sole discretion, commence any action in any jurisdiction and subject to the laws and court of said jurisdiction, where the Buyer conducts business or where the Product is located.
NEGOTIATION AND MEDIATION
Before initiating any lawsuit, the parties agree to primarily submit all controversy to negotiation, mediation and to act honestly and in good faith. Therefore, if the parties do not resolve all or some dispute or claim, one or other of the parties may send a written notice to the other in which it seeks to negotiate. If, following 30 days of negotiation, dispute remains for some or all issues, the parties must seek a mediator. The mediator must be chosen by the parties jointly. The parties undertake to participate in at least one mediation meeting, delegating a person in authority of decision. If no agreement is reached within 30 days following the decision to seek a mediator, or within 60 days of the appointment of the mediator, the dispute shall be settled definitively by the courts, according to paragraph ’’Governing Law and Courts’’ of section ‘’General Provisions’’.
Except for cases where email communication is permitted by these Terms, all notices required under these Terms must be sent to the recipient’s address by registered mail with acknowledgment of receipt or by a recognized courier company; notices shall be deemed effective when received.
Except for the obligation to make payments, a party is not liable to fulfill its obligations under these Terms if performance is materially prevented as a consequence of natural catastrophes, terrorism, civil unrest, war, explosions, fire, breakdowns or damages to installations, constructions or machines, disruption to public transport, labour market conflicts (such as strikes and lock-outs) or other similar circumstances or acts of God. In the event of force majeure, a party is not obligated to fulfill its obligations as long as, and to the extent, the force majeure continues. The party invoking force majeure shall inform the other party immediately in writing.
No party will be deemed to have waived the exercise of any right that it holds under these Terms unless such waiver is made in writing. Failure or delay by either party to exercise any of its rights, powers or remedies hereunder shall not constitute a waiver of those rights, powers or remedies. The single or partial exercise of a right, power or remedy shall not prevent its subsequent exercise or the exercise of any other right, power or remedy.
Buyer represents and warrants that (a) no relevant agency has suspended, revoked or denied Buyer’s export and/or import privileges; (b) Buyer is not located in or under the control of a national or resident of, a jurisdiction where this transaction is prohibited; and (c) Buyer shall not, in any manner whatsoever, either remove, convey, export, import or transmit the Products from or to Buyer’s jurisdiction in violation of the applicable laws and regulations.
The scope and definitions, payment obligations, title and delivery, taxes and duties, general provisions, limitations of liability, exclusions of warranties, intellectual property rights, ownership and proprietary rights and confidentiality requirements set forth in these Terms shall survive the expiration of these Terms or termination of these Terms by either party for any reason. Termination shall be without prejudice to any other right or remedy to which either party may be entitled under these Terms, or in law.
Should any provision or part of any provision of these Terms be found illegal, invalid or unenforceable by a court of competent jurisdiction, such provision, or part thereof, shall be read down to the extent necessary to ensure that such provision, or part thereof is not illegal, invalid or unenforceable but, if that is not possible, such provision, or part thereof, shall be deemed severed, and the remainder of these Terms shall remain in full force and effect.
Except as specifically provided in these Terms, the rights and remedies provided in these Terms and all other rights and remedies available to either party are, to the extent permitted by law, cumulative and not exclusive of any other right or remedy now or hereafter available, neither asserting a right or employing a remedy shall preclude the concurrent assertion of any other right or employment of any other remedy.