1. General

 

(a) The Terms

The terms and conditions contained herein (the “Terms”), together with any additional or different terms contained in any Bow Robotics, LLC, an Ohio limited liability company (“Bow”), proposal (a “Proposal”), if any, submitted to Purchaser (which terms of such Proposal shall control over any conflicting terms and conditions), constitute the entire agreement (the “Agreement”) between the parties with respect to the Services to be performed by Bow pursuant to a purchase order submitted by Purchaser (an “Order”) and supersede all prior communications and agreements regarding the subject matter hereof. Acceptance by Bow of an Order, or Purchaser’s acceptance of a Proposal, is expressly limited to and conditioned upon Purchaser’s acceptance of these Terms. Payment for or acceptance of any Equipment or the performance of any Services is deemed to be acceptance of these Terms. Any different or additional terms or conditions in any request for quotation, order, proposal, acknowledgment form, or any other document of Purchaser are hereby deemed material alterations and are null and void and superseded by these Terms. Bow shall not be bound by any other terms or conditions unless expressly agreed to in writing by Bow. Bow shall have the right to revise these Terms from time to time without notice to you.

 

(b) Delivery Date

The promised delivery date is the best estimate possible of when the Equipment will be shipped. Bow shall have no liability for lost profits or incidental or consequential damages due to delay.

 

(c) Definitions

Unless the context otherwise requires, the term “Equipment” as used herein means all equipment, parts, or accessories sold to Purchaser, and all software and software documentation, if any, licensed to Purchaser by Bow (“Software”) under an Order. Unless the context otherwise requires, the term “Services” as used herein means all labor, supervisory, technical and engineering, training, installation, repair, consulting or other services provided by Bow under an Order. As used herein, the term “Purchaser” shall include the initial end user of the Equipment or recipient of the Services.

 

2. Prices

 

(a) Firm Offer

Unless otherwise specified in writing, all Proposals expire thirty (30) days from the date thereof. Thereafter, they are subject to change without notice. If there is a delay in completion or shipment of any Order due to any change requested by Purchaser, or as a result of any delay on Purchaser’s part in furnishing information necessary for completion of an Order, the price initially agreed upon at time of acceptance is subject to change. Prices are F.O.B. place of shipment and do not include any federal, state or local property, license, privilege, sales, use, excise, gross receipts, or other like taxes which may now or hereafter be applicable. Purchaser agrees to pay or reimburse Bow for any such taxes, customs duties or other fees which Bow or its suppliers are required to pay or collect. If Purchaser is exempt from the payment of any tax or holds a direct payment permit, Purchaser shall, upon Order placement, provide Bow with a copy, acceptable to the relevant governmental authorities, of any such certificate or permit.

 

(b) Services Prices

Services prices are based on normal business hours (6 a.m. to 6 p.m. Monday through Friday). Overtime and Saturday hours will be billed at one and one-half (1 1/2) times the hourly rate; and Sunday & Holiday hours will be billed at two (2) times the hourly rate. If a Services rate sheet is attached hereto, the applicable Services rates shall be those set forth in the rate sheet. Rates are subject to change without notice.

 

3. Payment

 

Unless specified to the contrary in writing by Bow, payment terms are net cash, payable without set off, defense, recoupment, or deduction of any kind, in US Dollars, thirty (30) days from date of invoice. If, in the judgment of Bow, the financial condition of Purchaser at any time prior to delivery of the Equipment or Services does not justify the terms of payment specified, Bow may require payment in advance, payment security satisfactory to Bow, or may terminate the Order, whereupon Bow shall be entitled to receive a cancellation fee equal to five (5%) of the total price of the Order. A charge of one and one-half percent (1.5%) per month shall be applied to all past due balances. In addition, Bow is entitled, among its other rights, to cease work and stop deliveries or any other activities with respect to any Order until such payment, including any accrued interest, has been paid in full.

 

4. Title

 

Title to all Equipment shall remain in Bow until the complete purchase price and all additional costs and charges, as adjusted (collectively, the “Purchase Price”) are paid by Purchaser. Purchaser shall keep the Equipment free from all liens, levies and encumbrances until the Purchase Price is paid in full by Purchaser. Purchaser hereby grants to Bow a security interest in any Equipment sold hereunder to secure payment in full of any amounts owed by Purchaser to Bow for such Equipment. Purchaser agrees to execute and hereby appoints Bow as its attorney-in-fact to execute on Purchaser’s behalf, any document requested by Bow which is necessary for attachment and perfection of its security interest. If Purchaser defaults, Bow will have all the rights of a secured creditor under the Uniform Commercial Code as enacted in the State of Ohio. Risk of loss shall pass to Purchaser upon delivery of the Equipment to the carrier.

 

5. Changes

 

Any changes requested by Purchaser affecting the ordered scope of work and any resulting adjustments to affected provisions, including price, schedule, and guarantees, shall not be implemented or effective until agreed to in writing by Bow. Bow may, at its expense, make such changes in the Equipment or Services as it deems necessary, in its sole discretion, to conform the Equipment or Services to the applicable Order. If Purchaser objects to any such changes, Bow shall be relieved of its obligation to conform to the applicable Order to the extent that conformance may be affected by such objection.

 

6. Inspection, Testing and Acceptance

 

Any inspection by Purchaser of Equipment shall be scheduled in advance to be performed during normal business hours at Bow’s facility and subject to Bow’s standard inspection. If the Order provides for site acceptance testing, testing will be performed by Bow personnel to verify that the Equipment has arrived at the site complete, without physical damage, and in good operating condition. Completion of site acceptance testing constitutes full and final acceptance of the Equipment. If, through no fault of Bow, acceptance testing is not completed within thirty (30) days after arrival of the Equipment at the site, the site acceptance test shall be deemed completed and the Equipment shall be deemed accepted. Notice of any defects or claims of any nature (except warranty) must be made within ten (10) days of delivery. The return of Equipment will not be accepted for any reason without Bow’s prior written authorization. Returned Equipment must be insured by Purchaser for its full value.

 

7. Warranties and Remedies

 

(a) Limited Warranty

Subject to the following conditions, Bow warrants to Purchaser that the Equipment shall be free from defects in workmanship, material and manufacturing for a period of one (1) year from the date of shipment to Purchaser. At Bow’s option, Bow shall repair or replace without charge, or refund to Purchaser the purchase price for such Equipment, upon return to Bow of the defective Equipment; provided any defect in the Equipment is brought to the attention of Bow within the warranty period. Bow alone will be authorized to furnish or arrange for replacements, or refund its sales price within the terms of this warranty. Travel and other expenses incidental to the repair or replacement are not included.

 

(b) Exceptions

This limited warranty does not apply, and no warranty, either express or implied, shall be applicable to Equipment that: (i) is damaged due to accident, negligence, alteration, misuse or abuse, (ii) has been improperly repaired or altered by a party other than Bow, (iii) is not operated or maintained according to the procedures recommended by Bow, (iv) is comprised of materials provided or a design specified by Purchaser, or (v) has failed as a result of ordinary wear and tear. Equipment supplied by Bow but manufactured by another party is warranted only to the extent of such manufacturer’s warranty, and only the remedies, if any, provided by the manufacturer’s warranty will be allowed. Additionally, Bow is providing the Services to Purchaser on an “as is” basis without any warranty, express or implied, and this limited warranty does not apply to the provision of Services. Purchaser is solely responsible for selecting and determining the suitability of any Service, and Bow will have no liability for that selection or suitability.

 

(c) Software Warranty and Remedies

Bow warrants that, except as specified below, the Software will, when properly installed, execute in accordance with Bow’s, and/or the Software designer’s published specifications. If a nonconformity to the foregoing warranty is discovered during the period ending one (1) year after the date of service and written notice of such nonconformity is provided to Bow promptly after such discovery and within that period, including a description of the nonconformity and complete information about the manner of its discovery, Bow shall correct the nonconformity by, at its option, either (i) modifying or making available to Purchaser instructions for modifying the Software; or (ii) making available at Bow’s facility necessary corrected or replacement programs. Bow shall have no obligation with respect to any nonconformities resulting from: (i) unauthorized modification of the Software or (ii) Purchaser-supplied software or interfacing. Bow does not warrant that the functions contained in the Software will operate in combinations which may be selected for use by the Purchaser, or that the Software is free from errors in the nature of what is commonly categorized by the computer industry as “bugs”.

 

(d) Exclusive Remedies

THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. THE REMEDIES STATED HEREIN CONSTITUTE PURCHASER’S EXCLUSIVE REMEDIES AND BOW’S ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY.

 

8. Limitation of Liability

 

THE EXCLUSIVE REMEDY FOR PURCHASER OF ANY BREACH OF THESE TERMS IS LIMITED TO THOSE REMEDIES STIPULATED IN PARAGRAPH 7 HEREOF, AND BOW SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, including, but not limited to, loss of profits or revenue, overhead, labor, injury to person or property, loss of use of the Equipment or any associated equipment, cost of capital, cost of substitute equipment, facilities or services, downtime costs, delays, or any other incidental loss resulting from any performance or absence of such performance by bow hereunder. All causes of action against Bow arising out of or relating to this Agreement or the performance or breach hereof shall expire unless brought within one (1) year after the cause of action has accrued.

 

9. Laws and Regulations

 

Bow Robotics does not assume any responsibility for compliance with federal, state or local laws and regulations, and compliance with any laws and regulations relating to the operation or use of the Equipment is the sole responsibility of the Purchaser. All laws and regulations referenced herein shall be those in effect as of the Proposal date. In the event of any subsequent revisions or changes thereto, Bow assumes no responsibility for compliance therewith. If Purchaser desires a modification as a result of any such change or revision, it shall be treated as a change per Paragraph 5 hereof. Nothing contained herein shall be construed as imposing responsibility or liability upon Bow for obtaining any permits, licenses or approvals from any agency required in connection with the supply, erection or operation of the Equipment. If any provision hereof, partly or completely, shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision or portion hereof and these Terms shall be construed as if such invalid or unenforceable provision or portion thereof had never existed.

 

10. OSHA

 

In no event shall Bow be responsible for liability arising out of the violation of any Occupational Safety and Health Administration standard relating to or caused by Purchaser’s design or manufacturing practices, location, operation, or maintenance of the Equipment, its use in association with other equipment of Purchaser, or the alteration of the Equipment by any party other than Bow.

 

11. Software, License and Training Documentation

 

(a) Ownership of Software

Bow Robotics owns all rights in or has the right to sub license any Software or training documentation delivered to Purchaser under this Agreement. As part of the sale made hereunder, Purchaser hereby obtains a limited license to use the Software and the training documentation, subject to the following: (i) the Software and training documentation may be used only in conjunction with Equipment specified by Bow; (ii) the Software and training documentation shall be kept strictly confidential; (iii) the Software shall not be copied, reverse engineered, or modified; (iv) the training documentation shall not be copied or printed without the express written consent of Bow, (v) Purchaser’s right to use the Software and training documentation shall terminate immediately when the specified Equipment is no longer used by Purchaser or when otherwise terminated hereunder; and (vi) the rights to use the Software and training documentation are non-exclusive and non-transferable, except with Bow ‘s prior written consent.

 

(b) Limited License

Nothing in this Agreement shall be deemed to convey to Purchaser any title to or ownership in the Software or the intellectual property contained therein in whole or in part, nor to confer upon any person who is not a named party to this Agreement any right or remedy under or by reason of this Agreement. In the event of termination of the limited license granted to Purchaser under this Paragraph 11, Purchaser shall immediately cease using the Software and, without retaining any copies, notes or excerpts thereof, return to Bow the Software and all copies thereof and shall remove all machine readable Software from all of Purchaser’s storage media.

 

12. Inventions and Information

 

Any specifications, drawings, plans, notes, instructions, inventions, developments, improvements or modifications of or for Equipment and Services of Bow furnished to Purchaser (collectively, “Information”) shall be deemed to be incorporated herein by reference. Bow shall at all times retain title to all such documents, and Purchaser shall not disclose such to any third party without Bow’s prior written consent. Upon Bow’s request, Purchaser shall promptly return to Bow all such Information and copies thereof. Such Information shall be used solely for the operation or maintenance of the Equipment or in furtherance of the Services and not for any other purpose, including the duplication thereof in whole or in part.

 

13. Force Majeure

 

Bow shall neither be liable for loss, damage, detention or delay nor be deemed to be in default for failure to perform when prevented from doing so by causes beyond its reasonable control, including but not limited to acts of war (declared or undeclared), acts of God, fire, strike, labor difficulties, acts or omissions of any governmental authority or of Purchaser, compliance with government regulations, insurrection or riot, embargo, delays or shortages in transportation or inability to obtain necessary labor, materials, or manufacturing facilities from usual sources or from defects or delays in the performance of its suppliers or subcontractors due to any of the foregoing enumerated causes. In the event of delay due to any such cause, the date of delivery will be extended by a period equal to the delay plus a reasonable time to resume production, and the price will be adjusted to compensate Bow for such delay.

 

14. Cancellation

 

Any order may be canceled by Purchaser only upon prior written notice and payment of termination charges, including but not limited to, all costs and all expenses incurred by Bow attributable to the Order incurred prior to the effective date of notice of termination, plus a fixed sum of five percent (5%) of the total Purchase Price to compensate Bow for disruption in scheduling, planned production and other indirect costs.

 

15. Indemnification

 

(a) Purchaser Indemnification

Purchaser agrees to indemnify, defend and hold Bow harmless from and against all costs, expenses, judgments, damages, liabilities, or other reasonable costs of litigation or defense of any claim, including reasonable attorneys’ fees and costs, directly or indirectly caused, occasioned or contributed by reason of Purchaser’s failure to comply with the provisions of this Agreement or resulting from Purchaser’s use or modification of, failure to implement any changes to, or resale of the Equipment delivered hereunder, or selection and implementation of any Service.

 

(b) Bow Indemnification

Bow agrees to indemnify, defend, and hold harmless Purchaser from and against any action brought by a third party to the extent such action is based upon a piece of Equipment infringing upon any intellectual property rights of a third person. If a piece of Equipment becomes, or in Bow’s opinion is likely to become, the subject of an infringement claim, Bow may, at its option and expense, either: (i) procure for Purchaser the right to continuing using the Equipment, (ii) replace or modify the Equipment so that it becomes non-infringing without substantially compromising its principal functions, or (iii) terminate this Agreement upon notice to Purchase and refund to Purchaser the Purchase Price actually paid by Purchaser for such Equipment. Notwithstanding the foregoing, Bow will have no obligation under this Paragraph or otherwise with respect to any infringement claim based upon (i) any use of the Equipment not in accordance with this Agreement or for purposes not intended by Bow, or (ii) any modification of the Equipment by an person other than Bow or its authorized agents, employees, representatives, or subcontractors. THIS CLAUSE STATES BOW’S ENTIRE LIABILITY AND PURCHASER’S EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.

 

16. Termination

 

Bow may terminate this Agreement upon immediate written notice to Purchaser upon the happening of any of the following events: (a) failure of Purchaser to accept delivery of the Equipment or Services or to pay any indebtedness to Bow when due, accompanied by a failure within three (3) days after demand therefor, to fully pay the same or provide assurance of payment satisfactory to Bow; (b) breach by Purchaser of any material provision in this Agreement, and failure to cure within ten (10) days of receiving notice thereof, other than the payment of any indebtedness to Bow; and (c) Purchaser ceases to function as a going concern, or makes an assignment for the benefit of creditor’s or any proceeding under any federal or state bankruptcy, receivership, or insolvency laws is instituted by or against Purchaser, or the liquidation or dissolution of Purchaser occurs, or a receiver or trustee for Purchaser or any of its assets or property is appointed or applied for. Termination shall not release or affect, and this Agreement shall remain fully operative as to, any obligations or liabilities incurred by Purchaser prior to the effective date of such termination; provided, however, that all indebtedness of Purchaser to Bow shall become immediately due and payable on the effective date of termination without demand, and Bow may deduct from any sums it owes to Purchaser sums owed by Purchaser to Bow. Any Order received from Purchaser, regardless of acceptance (or the lack thereof) by Bow, which has not been shipped prior to Purchaser’s receipt of notice of termination or the effective date of termination or expiration, whichever shall occur first, shall only be shipped C.O.D. or cash in advance.

 

17. Assignment

 

This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective legal representatives, successors and assigns. This Agreement may not be assigned or otherwise transferred by Purchaser without the prior written consent of Bow, including by merger, reorganization, consolidation, or sale of all or substantially all of Purchaser’s assets. Any purported assignment or transfer in violation of this Paragraph 17 shall void and without force or effect.

 

18. Disputes

 

This Agreement and any controversy arising hereunder shall be governed by the internal laws of the State of Ohio. The state and federal courts within Hamilton County, Ohio, shall have exclusive jurisdiction over any litigation resulting with respect to this Agreement, and the parties consent to the jurisdiction thereof.