Terms & Conditions of Sale
1. GENERAL
a. These terms and conditions of sale ("Terms") are applicable to all sales of products ("Products") by MVP Robotics, Inc. ("MVP") to the buyer ("Buyer"). BUYER'S PLACEMENT OF A PURCHASE ORDER FOR PRODUCTS SHALL CONSTITUTE BUYER'S ACCEPTANCE OF THESE TERMS. IN NO EVENT SHALL ANY CONFLICTING OR ADDITIONAL TERMS SET FORTH IN BUYER'S PURCHASE ORDER (OR ANY OTHER DOCUMENT) APPLY TO MVP'S SALE OF PRODUCTS TO BUYER, UNLESS SPECIFICALLY AGREED TO BY MVP IN A SIGNED WRITING. THESE TERMS, DATED JULY 31, 2024, SUPERSEDE ALL PREVIOUS COMMUNICATIONS ON THIS SUBJECT. MVP reserves the right to amend these Terms at any time.
b. MVP shall have no obligation to sell any Products to Buyer unless and until MVP (i) has issued an order acknowledgement or similar document expressly confirming MVP's acceptance of Buyer's purchase order and (ii) Buyer has paid the deposit required under Section 6.a. of these Terms. Thus, the parties' agreement regarding the sales of Products shall consist solely of (i) these Terms; (ii) provisions set forth in an order acknowledgement or similar document issued by MVP; (iii) Product description and number, the price, units of Products, and delivery dates and shipment instructions set forth in Buyers purchase order, provided such terms are accepted in MVP's order acknowledgement; and (iv) any other provisions set forth in a writing signed by both parties. Such documents are collectively referred to herein as this "Agreement."
c. The use of an electronic signature in accordance with applicable law is a permissible substitute for a hand written signature.
2. SCOPE OF SUPPLIES
a. The Products of MVP are identified in MVP's order acknowledgement and in appendices thereto. MVP shall be entitled to make any changes in such Products which lead to improvements provided such changes do not result in a price increase.
b. MVP reserves the right to manufacture or source material from its approved suppliers, at any MVP location, including alternate MVP manufacturing organizations and locations without Buyer's consent.
3. TECHNICAL DOCUMENTS AND INFORMATION, CONFIDENTIAL INFORMATION
a. Unless otherwise agreed upon by MVP in a signed writing, statements made in brochures, catalogues, technical documents and the like are not binding.
b. All technical information and other intellectual property provided by MVP in connection with the Products is the sole and exclusive property of MVP and shall not be reproduced, disclosed or produced or relied upon by anyone other than Buyer. Buyer shall not reverse engineer Products. The sale of MVP Products does not grant a license to Buyer of any of MVP proprietary technology except the use of said Products by Buyer.
c. Buyer agrees that any information it obtains about MVP (other than information that is issued by MVP in its published, publicly available materials and on the public portions of its website) is MVP's confidential information ("Confidential Information") irrespective of whether such information is disclosed to Buyer in oral, written or visual form. Confidential Information includes without limitation the business, products, customers, employees or authorized agents, product plans, technical drawings, blueprints, performance data, bench¬marking data, pricing, vendors, proposals, trade secrets and ideas, inventions, concepts, techniques, and know-how used by MVP in its manufacturing processes. Buyer agrees that it will maintain the Confidential Information in strict confidence and will not disclose or disseminate it to any third party without MVP's express, prior written consent. Buyer agrees that it will use the Confidential Information only in connection with its purchase and use of Products. Upon MVP's request, Buyer will return to MVP all written or descriptive matter which contains any Confidential Information.
4. NO RESALE WITHOUT CONSENT
Buyer may not resell/distribute/redistribute Products purchased under this Agreement without MVP’s prior written consent. Buyer shall notify MVP of its intent to resell/distribute/redistribute Products when it places its purchase order with MVP, said notice to include the time and place of delivery to the end-user of the Products to ensure (a) that there is no unauthorized resale/distribution/redistribution and (b) that MVP has an accurate and current list of all end users. If MVP approves of such resale/distribution/redistribution, MVP’s order acknowledgement or similar document will so indicate in writing. Any resale/distribution/redistribution without said consent shall be in breach of this Agreement. In the event it is determined that that there is an unauthorized resale/distribution/redistribution of Products, any warranties provided hereunder shall not pass to the reseller/distributor and/or the end user, and MVP reserves the right to terminate this Agreement and retain the deposit submitted under Section 6.a. MVP may make public reference to list of Buyers and end users.
5. PRICES; CANCELLATION POLICY
a. Unless otherwise agreed upon all prices shall be Ex Works point of manufacture (Incoterms 2020), including standard packaging, in U.S. Dollars without any deductions whatsoever.
Any and all additional charges, such as, but not limited to, freight charges, special packaging requirements, insurance premiums, fees for export, transit, import and other permits, as well as for certifications, shall be borne by Buyer.
Prices are exclusive of, and Buyer shall be solely responsible for, the payment of any and all sales, VAT, use, excise and other similar taxes, fees, levies, customs duties and the like which are due as a result of, or are levied out of or in connection with the sale of Products by MVP, and Buyer shall indemnify and hold MVP harmless in the event MVP is liable for any such payments as a result of Buyer's failure to pay.
b. Prices are subject to change without notice.
c. Cancelled orders may be subject to a cancellation fee.
6. TERMS OF PAYMENT
a. Buyer shall submit a 50% deposit of the purchase price for the Products at the time it places a purchase order. The remaining balance for the purchase order shall be paid prior to shipment as set forth in MVP's invoice, net, without any deduction for cash discount, expenses, taxes, levies, fees, duties, and the like, unless otherwise agreed by MVP in writing. No Products will be shipped prior to payment in full. MVP may change payment terms or withhold shipment of an order at any time when, in MVP's opinion, Buyer's financial condition, previous payment history, or the nature of Buyer's relationship with MVP so warrants. If an order is ready for shipment, but final payment remains outstanding for 30 days following invoice, MVP reserves the right, in its sole discretion, to terminate the transaction and retain the deposit to cover out‐of‐pocket costs and/or as a restocking fee.
b. The due date for payment shall not be extended if transport, delivery, erection, commissioning or Buyer's possession of the Products is delayed or prevented due to reasons beyond MVP's control, or if unimportant parts are missing, or if post-delivery work may nevertheless be carried out by Buyer even though delivery of the Products has not yet occurred.
c. Unless otherwise expressly stated in the Agreement, MVP shall have the right to make delivery in installments. All installments shall be separately invoiced and paid as billed without regard to subsequent deliveries. Failure to pay for any installment when due shall excuse MVP from making further deliveries. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining installments.
d. If Buyer fails to make any payment when due, Buyer shall be liable, without reminder, for interest with effect from the date on which the payment was due at a rate of 1.5% per month. Payment of the interest does not release Buyer from its obligation to make payments on the agreed dates or from any obligation to pay damages which might exceed the interest due. Buyer shall reimburse MVP for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees.
7. SECURITY INTEREST
Buyer hereby grants to MVP a purchase money security interest in all Products sold to Buyer as security for the due and punctual performance by Buyer of its obligations hereunder. Buyer hereby authorizes MVP to file a financing statement evidencing such security interest, and Buyer agrees to execute such documents to evidence and perfect such security interest as MVP may require.
8. DELIVERY TIME
a. Buyer shall take delivery of Products as stated in the applicable purchase order and order acknowledgement. It is acknowledged and understood that if the purchase order and/or the order acknowledgement contain an estimated delivery date, it will be necessary for Buyer and MVP to confer and agree on a specific delivery date. Unless otherwise agreed to in writing, MVP will be deemed to have met its delivery responsibilities if, on or before the delivery date, MVP has sent a notice to Buyer informing it that the Products are ready for shipment.
b. MVP's compliance with its delivery obligations is conditioned on Buyer's continued fulfillment of all of its obligations, including, without limitation, payment obligations and cooperation obligations.
c. In addition to any other rights and remedies available to MVP, MVP shall have the right to extend the time for delivery for a period that is reasonable under the circumstances, in the event that:
i. the information required by MVP for performance of this Agreement is not received by an agreed to date, or if Buyer subsequently changes any such information;
ii. MVP is prevented or hindered from performing based on circumstances beyond its reasonable control, without its fault or negligence, including, without limitation, acts of God, valid or invalid action by governmental authority, acts of war, terrorism, freight embargoes, pandemics or epidemics, quarantine restrictions, fires, floods, windstorms, explosions, riots, natural disasters and unusually severe weather, sabotage, labor problems, inability to obtain materials and supplies from usual sources, inability to obtain electrical service, fuel or transportation, or court injunction or order; or
iii. Buyer fails to perform any of its obligations under this Agreement in a timely manner, including, without limitation, if Buyer fails to make payment for the current or for previous orders in a timely manner.
d. Any failure of MVP to deliver the Products on a timely basis shall not constitute a breach of this Agreement, shall not entitle Buyer to terminate the Agreement and shall not entitle Buyer to any damages for such failure, and Buyer's sole remedy for such failure shall be to cancel the order at issue, unless such failure results from the willful misconduct or gross negligence of MVP.
9. RISK OF LOSS
a. Title to the Products and risk of loss passes to Buyer when MVP delivers the goods to Buyer’s carrier at MVP's plant, designated manufacturer or other MVP facility.
b. If shipment is delayed at the request of Buyer, at the fault of Buyer or due to reasons beyond MVP's reasonable control, the risk of the loss shall pass to Buyer at the time originally agreed to for shipment. From and after such time, the Products shall be stored and insured on the account of, at the expense of, and at the risk of, Buyer.
10. FORWARDING, TRANSPORT AND INSURANCE
a. Buyer's purchase order shall specify any requirements regarding forwarding, transport and insurance. All shipments shall be Ex Works point of manufacture (Incoterms 2020), at Buyer's expense and risk. Objections regarding forwarding or transport shall upon receipt of the Products or of the shipping documents be immediately submitted by Buyer to the last carrier.
b. In no event shall MVP be deemed to assume any liability in connection with any shipment. Buyer shall be solely responsible for procuring insurance against all risks.
11. INSPECTION AND ACCEPTANCE OF PRODUCTS
a. Buyer shall inspect the Products including partial deliveries thereof within a reasonable period following arrival at Buyer's premises but in any event within 10 days of such arrival and shall immediately notify MVP in writing of any failure of the Products to conform to the requirements of this Agreement. If Buyer fails to provide such notice within such time period, the Products, including partial deliveries of the Products, shall be deemed to have been accepted.
b. After having been notified of any such failures, MVP shall use commercially reasonable efforts to remedy such failures within a reasonable period of time, and Buyer shall cooperate with MVP's efforts to do so. If MVP is not able, despite commercially reasonable efforts, to remedy any such failures, MVP shall replace the Products at issue, which shall be MVP's sole liability, and Buyer's sole remedy, for MVP's failure to remedy any such failures.
c. Acceptance shall be automatically deemed to have occurred without further action by Buyer as soon as Buyer commences use of the Products (including partial delivery of Products).
d. Deficiencies of any kind in Products including partial deliveries of Products shall not entitle Buyer to any rights or claims other than those expressly stated in these Terms.
12. WARRANTY AND LIABILITY
a. Warranty Period
The warranty period applicable to the Products ("Warranty Period") shall be a 12 month period commencing upon shipment of the Products. In the event shipment of the Products is delayed by Buyer or by reasons beyond MVP's reasonable control, the Warranty Period shall end on the earlier of 12 months from the date of shipment or 18 months from the date that MVP notifies Buyer that the Products are ready for shipment. Buyer may separately purchase an extended warranty for the Products from MVP after the end of the Warranty Period.
With respect to any replacement or repaired parts provided by MVP pursuant to Section 12.b below, the Warranty Period shall be the original Warranty Period applicable to the Products that were the subject of such replacement or repairs. The Warranty Period will be deemed ended, and MVP shall have neither liability nor obligation to provide any remedy in the event:
i. Buyer or a third party performs any repairs or modifications to the Products or combines the Products with other products without MVP's prior written authorization;
ii. Buyer fails to mitigate any damage resulting from a failure of any Product to conform to its warranties; or
iii. Buyer fails to give MVP timely notice of a failure of a Product to conform to its warranties, or fails to give MVP the opportunity to remedy any breach of warranty.
b. Warranty
During the Warranty Period, MVP warrants that the Products will substantially conform to MVP's product specifications contained in MVP’s product manual.
c. Remedy For Breach of Warranty
In the event of any breach by MVP of any warranty set forth in Section 12.b, MVP shall, at its sole option, either repair or replace the Products. Such remedies shall be MVP's sole liability and Buyer's sole remedy for breach of any warranty set forth in Section 12.b. Buyer agrees to cooperate with MVP in any effort it makes to supply the foregoing remedies. Any repair performed at Buyer's facility shall be at the expense of Buyer.
d. Exclusions from Warranty
The warranties set forth in Section 12.b. above do not cover any condition(s) (i) which cannot be proved to have its origin in defective materials or workmanship; (ii) which results from normal wear and tear, failure to assemble, install, maintain or operate the Products in strict conformity with instructions provided by MVP; (iii) which result from unusual physical misuses of the Products such as falls greater than 1 meter, submersion in water, user negligence or accidents; or (iv) any other cause beyond MVP's reasonable control.
e. No Other Warranties
THE WARRANTY SET FORTH IN SECTION 12.b ABOVE IS EXCLUSIVE AND IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO COURSE OF DEALING AND NO PRODUCT DESCRIPTION SHALL BE DEEMED A WARRANTY OF ANY GOODS DELIVERABLE BY MVP.
f. No Assignment
The warranty rights and remedies set forth herein cannot be assigned to any third party without the prior written approval of MVP.
g. Return Procedures
Buyer shall comply with MVP procedures then in effect concerning the return of Products under warranty or for repair.
13. Export Regulation
The Products, including any software, documentation, and any related technical data included with, or contained in, the Products, and any products utilizing any such Products, software, documentation, or technical data (collectively, "Regulated Products") may be subject to US export control laws and regulations, including the Export Administration Regulations and the International Traffic in Arms Regulations. Buyer shall not, and shall not permit any third parties to, directly or indirectly, export, reexport, or release any Regulated Products to any jurisdiction or country to which, or any party to whom, or for any use for which, the export, reexport, or release of any Regulated Products is prohibited by applicable federal law, regulation, or rule. Buyer shall be responsible for any breach of this Section 13 by its, and its successors' and permitted assigns', parent, affiliates, employees, officers, directors, partners, members, shareholders, customers, agents, distributors, resellers, or vendors. Buyer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, reexporting, or releasing any Regulated Products. Buyer shall provide prior written notice of the need to comply with such laws, regulations, and rules to any person, firm, or entity which it has reason to believe is obtaining any such Regulated Products from Buyer with the intent to export or reexport.
14. TERMINATION
In addition to any other rights and remedies available to it under law or in equity, MVP may terminate its relationship with Buyer at any time in the event that (a) Buyer is involved in any voluntary or involuntary bankruptcy proceeding or any other proceeding concerning insolvency, dissolution, cessation of operations, or reorganization of indebtedness and the proceeding is not dismissed within 60 days or (b) Buyer becomes unable to pay its debts as they mature in the ordinary course of business or makes an assignment for the benefit of its creditors.
15. LIMITATION OF LIABILITY
THE LIABILITY OF MVP WITH RESPECT TO A CLAIM OF ANY KIND, WHETHER AS TO QUALITY OR AMOUNT OF PRODUCTS DELIVERED OR FOR A NON-DELIVERY OF PRODUCTS, SHALL NOT EXCEED THE INVOICE PRICE OF THE QUANTITIES OF PRODUCTS AS TO WHICH THE CLAIM IS MADE. THIS LIMITATION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE. IN NO EVENT WILL MVP BE LIABLE TO BUYER FOR ANY LOST PROFITS, LOST SAVINGS, COST OF COVER, PUNITIVE DAMAGES, INCIDENTAL DAMAGES OR OTHER CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER MVP WAS ADVISED OR AWARE OF THE POSSBILITY OF SUCH DAMAGES.
16. INDEMNIFICATION
Buyer assumes all responsibility and liability for injury or damages resulting from its handling, possession, use or sale of Products supplied hereunder, including, but not limited to any injury or damage resulting from the use of Products in Buyer's operations or in combination with other products, and agrees to hold harmless, defend and indemnify MVP from and against all claims, losses, liabilities and expenses (including attorney's fees and other litigation or settlement costs) arising out of such handling, possession, use or sale. The foregoing duty of Buyer to hold harmless, defend and indemnify MVP shall not apply to the extent such claim, loss, liability or expense results from the willful misconduct or gross negligence of MVP.
17. GENERAL
a. This Agreement shall be governed by the substantive laws of the State of Vermont, without regard to the conflicts of laws or rules thereof. The UN Convention on Contracts for The International Sale of Goods shall not apply to this Agreement. Buyer agrees to waive its rights to a trial by jury in any dispute under this Agreement. The parties hereby submit to the jurisdiction of any Vermont state or federal court sitting in Vermont over any action or proceeding arising out of or relating to this Agreement, and each party hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in such Vermont state or federal court.
b. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior written or verbal agreements or understandings. No modification of any of the terms of this Agreement shall be binding unless in writing and signed by both parties.
c. This Agreement is between MVP and Buyer only. There are no third party beneficiaries of any of the terms or conditions hereunder with the sole exception of warranty rights and remedies for third parties upon proper assignment of the same pursuant to Section 12.f.
d. Buyer may not assign its rights or obligations hereunder without the prior written consent of MVP.
e. All controversies and claims arising out of or relating to any contract between MVP and Buyer, or the breach thereof must be instituted within one year after the occurrence giving rise to the controversy or claim.
f. The failure of MVP to enforce any provision of this Agreement shall in no way be construed as a waiver of such provisions or in any way affect the validity of this Agreement, in part or in full, or affect the right of MVP to enforce any other provisions of this Agreement.
g. If any provision contained in this Agreement or any application thereof shall for any reason be held invalid, illegal or unenforceable by a court of competent jurisdiction, the remainder of the Agreement shall not be affected thereby, and each term and provision shall be valid and enforceable to the fullest extent permitted by law.
