Flores Automation & Machine Control – Terms and Conditions
STANDARD TERMS AND CONDITIONS OF SALE
These Standard Terms and Conditions of Sale (the “Terms & Conditions”) shall apply to all sale transactions, including, but not limited to, quotations and offers, Order Confirmations (as defined In Section 1), network subscription agreements and invoices (collectively, the “Transaction Documents”) all made out by Flores Automation & Machine Control, LLC (the “Seller”), pursuant to which (a) Flores Automation & Machine Control, LLC is acting as a seller of products (including hardware and software) set forth in the Transaction Documents (the “Products”) and as a licensee from Leica Geosystems, AG (“Licensor”) of any technology (including software) embedded within the Products and the object code version of computer software or code embedded within or running on or with the Products (the “Licensed Intellectual Property”) to the buyer identified in the Transaction Documents (“Buyer”), and (b) Buyer Is acting as a buyer of the Products and as a licensee of the Licensed Intellectual Property:
- FORMATION OF SALE AGREEMENT
Seller will be deemed to have accepted the purchase order of the Buyer for the Products (the “Purchase Order”) when Seller returns its confirmation of the purchase order (the “Order Confirmation”), when Buyer signs Seller’s quotation referencing these Terms & Conditions or, at Seller’s option, when Seller begins substantial performance under the Purchase Order without Order Confirmation. If an Order Confirmation is issued, Buyer will be presumed to have accepted the Order Confirmation unless Buyer rejects it in writing within seven (7) days from the date of receipt of Seller’s Order Confirmation. Notwithstanding the manner in which Seller accepts the Purchase Order, Buyer will be deemed to have accepted these Terms & Conditions set forth in the Transaction Documents. Seller hereby objects to and rejects any proposal by Buyer for additional or different terms in the Purchase Order or any other documents issued by Buyer. In the event of any inconsistencies between the Transaction Documents, later Issued documents shall have precedence over earlier issued documents.
- SALE AND LICENSE
2.1 Sale of Products and Transfer of Title. On and subject to these Terms & Conditions and the Transaction Documents, Seller will sell the Products to Buyer and Buyer will purchase them from Seller. Such sale will give Buyer physical possession and use of the Products. However, the Seller shall have a lien against the Buyer on Products pursuant to Section 3.2, below.
2.2 Licensed Intellectual Property. The software license agreement included in the software delivered to Buyer (including as applicable, the Software License Agreement available at http://www.leica-geosystems.com/corporate/en/ndef/lgs_3295.htm shall apply to Buyer and is incorporated herein by reference. Seller is not a licensor of any software or other intellectual property. Buyer will not remove, alter or obscure any of Seller’s or Licensor’s proprietary marks on the Products. Buyer will not use the Products other than as provided in this Section 2.2. Buyer will not use any intellectual property embodied in the Products apart from the Products or replicate such intellectual property.
2.3 Subscriptions for Network Access or Maintenance Services. Subscriptions for network access (including SMARTNET™ network access) or terms for maintenance services may be subject to a separate written agreement. To the extent not In conflict with such separate agreement, Sections 4 through 9, below, shall apply.
- SHIPMENT AND PAYMENT
3.1 Shipment and Delivery. Seller will package and ship the Products to Buyer at the address set forth in the Transaction Documents at Buyer’s cost. Unless otherwise specified in the Transaction Documents, the Products will be delivered ex works Seller’s loading dock in Muskego, Wisconsin. Any delivery dates, requested or agreed, are estimates only. Seller may deliver early. Seller disclaims any liability or responsibility for the late or non-delivery of goods hereunder. Seller will endeavor to ship all orders complete. Part shipments shall, however, be permitted subject to timely information of Buyer. Seller shall have no liability in case of part shipments. To preserve any claims against carriers for damages or loss, Buyer must direct the claim in writing directly to carrier, with a copy to Seller. Such claim must be made as soon as possible after receipt of the Products, but in no case later than seven (7) days. The design and specifications of the Products are subject to change without notice. Seller reserves the right to ship the latest type and design of Products at current prices as set out in the Transaction Documents and shall have no liability or obligation for such changes in design or specifications. Only if the changes in design or specifications would have a material negative impact upon the business or operations of Buyer or otherwise render the use of the Products commercially impracticable, Buyer may, within fourteen (14) days of receipt of the Order Confirmation, cancel the order without liability for either of Buyer and Seller.
3.2 Risk of loss, Security Interest, Retention of Title.
- Risk of loss to the Products will pass to Buyer when Seller delivers the Products to a carrier for shipment to Buyer ex works Muskego, Wisconsin.
- Buyer will not pledge, provide as collateral, allow placement of a lien on, or otherwise encumber or in any way charge by way of security for any indebtedness any Products or their documents of title until title to such Products passes to Buyer.
- To the extent the Products and the license of the licensed Intellectual Property will be delivered to the United States, the provisions of this Section 3.2(c) will apply. To secure prompt and full payment of Buyer’s obligations hereunder, Buyer hereby grants Seller a security interest in the Products, and all proceeds thereof. Seller may execute and file, and Buyer will assist Seller in the execution and filing of, financing statements and other documents and instruments evidencing such grant. If at any time Buyer is in default of payment hereunder, then, in addition to all other remedies available to Seller, Seller may exercise all remedies of a secured party under the laws of the United States, including, without limitation, directing any third parties purchasing the Products and the license of the Licensed Intellectual Property from Buyer to pay Seller directly for such Products.
- To the extent the Products and the license of the Licensed Intellectual Property will be delivered outside of the United States, the provisions of this Section 3.2(d) will apply. Until title to all Products passes to Buyer, Buyer will hold the Products and the license of the Licensed Intellectual Property in the Buyer’s possession or control as Seller’s fiduciary agent and bailee (in which full title to the Products will remain), will keep the Products separate from those of Buyer and third parties and properly stored, protected and insured, and will mark and identify the Products as Seller’s property. Until title to all Products and the license of the Licensed Intellectual Property passes to Buyer, if at any time Buyer is in default of payment hereunder, then:
- Seller may require Buyer to deliver the Products to Seller and, if Buyer falls to do so forthwith, Seller may enter upon any premises of Buyer or any third party where the Products are stored and repossess them;
- Buyer will ensure that any third party which holds the Products will permit Seller to take possession of them and will indemnify Seller against any liability which it may incur to such third party in connection with taking or attempting to take possession of the Products; and
iii. Seller may use or dispose of the Products as it wishes.
3.3 Price. The per-unit price for the Products is listed on the offer or quotation. Seller reserves the right, by giving notice to Buyer at any time before delivery, to increase the price of the Products to reflect any increase in the cost to Seller which is due to: (a) any factor beyond its control, (b) any Buyer requested change in delivery dates, quantities or specifications for the Products, or (c) any delay caused by any of Buyer’s instructions or Buyer’s failure to give Seller adequate information or instructions.
3.4 Payment. Buyer will pay the price for the Products and any related services in full by bank transfer within 30 days after receipt of an invoice for the Products, unless otherwise agreed in writing by Seller. No invoice will be dated earlier than the date on which the Products relating to that invoice are shipped. The per-unit prices are exclusive of, and Buyer will be responsible for, all taxes, duties, insurance, shipping, storage and handling charges or similar costs applicable to Buyer’s purchase of the Products. Seller will invoice Buyer for the amount of applicable freight. Buyer will pay all charges and costs in full by bank transfer within 30 days after receipt of an invoice for such charges and costs. Payment by Buyer will not be subject to set off or credit. If Buyer pays Seller any amount without identifying the invoice or Products in respect of which that payment is made, Seller may apply such payment in its sole discretion. Settlements by check or credit transfer will be deemed paid when Seller’s account is credited with cleared funds. Seller may charge Buyer and Buyer will pay interest on past due amounts under the Transaction Documents at the rate of one percent (1.0%) per month or the maximum rate permitted by law, whichever is less.
- INTELLECTUAL PROPERTY OWNERSHIP
4.1 General. Buyer acknowledges that Seller of Licensor owns (as between Seller, Licensor and Buyer) and Seller or Licensor, as applicable, will retain all ownership in the intellectual property relating to the Products, including, without limitation, copyright, trademark, trade secret, know-how, database, design and patent rights, and all tangible and intangible components thereof, and any improvements, modifications, design contributions or derivative works thereto or thereof conceived or created by either party, whenever developed (the “Seller of Licensor Intellectual Property”).
4.2 Licensed Intellectual Property. Buyer will not: (a) decode, reverse engineer, reprint, transcribe or reproduce, in whole or in part, the Licensed Intellectual Property, (b) modify or enhance the Licensed Intellectual Property, or (c) otherwise access or manipulate the Licensed Intellectual Property, except as expressly permitted in writing by Licensor. Buyer acknowledges that software or other intellectual property provided by a third-party licensor of Seller or Licensor (“Third-Party Intellectual Property”) may be incorporated in the Products. Buyer will abide by the applicable terms and conditions with respect to such Third-Party Intellectual Property, whether set forth in the Product documentation, “read me” files contained in the Products or otherwise. Unless provided for in the product documentation of such third party licensor, any Third-Party Intellectual Property will be governed by these Terms & Conditions.
4.3 Buyer Modifications, Integrations and Incorporations. Seller hereby consents to the: (a) modification of the Products by Buyer, or (b) incorporation or integration of the Products into or with other products or equipment owned by Buyer or licensed to Buyer by a third party (the “Buyer Equipment”), solely to the extent and in the manner described in the drawing and/or description, If any, attached to an Order Confirmation or in any subsequent written approval from Seller. Buyer will be responsible for any repairs required relating to such modification, incorporation or integration, or the Buyer Equipment and will indemnify and hold harmless Seller from any claims and expenses (including without limitation, reasonable legal expenses) arising out of or relating to any modification, incorporation or integration, or the Buyer Equipment.
4.4 Unauthorized Use. Buyer will notify Seller immediately upon discovery of any unauthorized use, copying or disclosure of the Licensed Intellectual Property. Buyer will not impair Seller’s or Licensor’s rights in the Licensed Intellectual Property.
4.5 Government Rights. Unless otherwise stated in an End User License Agreement (such as the license associated with Leica Cloudworx software), use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data clause at DFARS 252.227-7013. Unless otherwise stated in a Transaction Document or an End User License Agreement (such as the license associated with Leica Cloudworx software), the Government shall have no greater rights in software provided hereunder except as provided in FAR 52.227-19 (Commercial Computer Software license).
5.1 Products are warranted by Licensor in accordance with the International Limited Warranty available at http://www.leica-geosystems.com/en/International Warranty_3471.htm and the Software License Agreement available at http://www.leica-geosystems.com/en/Software-License-Agreement_87129.htm.
5.2 SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WRITEN OR ORAL, RELATING TO THE PRODUCTS, OR THE PERFORMANCE OF ITS OBLIGATIONS UNDER THE TRANSACTION DOCUMENTS, AND SELLER HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OR WARRANTIES IMPOSED BY LAW (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF DESCRIPTION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES OF COURSE OF DEALING OR USAGE OF TRADE) TO THE EXTENT PERMISSIBLE.
5.3 Acknowledgment. The parties agree that the restrictions in this Section 5 are reasonable in light of their relationship and the availability of insurance against such risks.
- LIMITATION OF LIABILITY/ INDEMNIFICATION
6.1 Limitation of Liability.
- SELLER WILL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES (WHICH MAY INCLUDE BUT ARE NOT LIMITED TO LOST PROFITS, LOSS OF USE, GOODWILL OR BUSINESS INTERRUPTIONS) ARISING OUT OF OR RELATING TO THE TRANSACTION DOCUMENTS OR THE PRODUCTS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- SELLER’S TOTAL LIABILITY UNDER THE TRANSACTION DOCUMENTS WILL NOT EXCEED THE AMOUNT RECEIVED OR DUE FROM BUYER FOR THE PRODUCTS.
- The limitation of liability set forth In Section 6.1(a) and (b) will not apply to death or personal injury resulting from Seller’s negligence to the extent such limitation of liability is prohibited under applicable law.
6.2 Indemnification. Buyer will indemnify, defend and hold Seller harmless from any and all claims, demands or other liabilities, including reasonable legal fees, arising out of or relating to Buyer’s breach of any provision of the Transaction Documents or Buyer’s relationship with its customers or Transferees (as defined in Section 9.4), except to the extent such claim, demand or other liability arises from the gross negligence or willful misconduct of Seller.
6.3 Product Claims. If Buyer becomes aware that any third party has made or appears likely to make any claim regarding the Products and/or Licensed Intellectual Property (including, without limitation, regarding Product defects or rights infringed by the Products), then Buyer will immediately inform Seller and afford to Seller reasonable assistance (such as permitting Seller to have control of any proceedings) which Seller may require to enforce its rights and defend such claim.
7.1 Definition. A party’s “confidential information” means information or data (in oral, written, electronic or other form), including, without limitation, any trade secret or know-how, related to or owned or controlled by such party, valuable to such party and not generally known or readily available through legal means (other than its disclosure in reliance on the Transaction Documents) to the other party. Buyer acknowledges that the Products and Seller Intellectual Property contain confidential information of Seller.
7.2 Obligations. A party may use the other party’s confidential information to perform its obligations and exercise its rights under the Transaction Documents, but may disclose it only to its officers, directors and employees on a need-to-know basis after informing any such discloses that it is confidential and directing them to comply with the Transaction Documents. Notwithstanding the foregoing, after giving reasonable notice to the other party (which notice affords the other party an opportunity to seek a protective order or other remedy); a party may disclose the other party’s confidential information to the extent required by law. On request, a party will return or destroy all records that contain or reflect the other party’s confidential information.
7.3 Remedy. A party may seek injunctive relief to redress or prevent violations of this Section 7, in addition to, and not in lieu of, any other rights and remedies available to such party.
7.4 Survival. Confidential information that is not a trade secret or know-how will cease to be protected hereunder on the third anniversary of its disclosure. Confidential information that is a trade secret or know-how will be protected for so long as such confidential information constitutes a trade secret or know-how under applicable law.
8.1 Buyer will provide Seller with such information, documentation and assistance as Seller requests to enable Seller to sell the Products to Buyer and to comply with all applicable laws, rules, regulations, orders and treaties in respect thereof. Buyer represents and warrants to Seller that all such information and documentation will be true, accurate and complete.
8.2 Buyer will not sell, export, re-export or transship – – or use or permit the use of – – any of the Products in contravention of any applicable United States or international law, rule, regulation, order or treaty from time to time in effect respecting the sale, export, re-export, transshipment or use of the Products, including, without limitation, any such law, rule, regulation, order or treaty respecting the trafficking in arms, terrorism, anti-terrorism, boycotts, anti-boycotts or other matters respecting the Products. Buyer acknowledges and confirms that any sale, export, re-export, transshipment or use of any of the Products contrary to any such law, rule, regulation, order or treaty is contrary to United States law and is forbidden. Buyer will not permit any such contravention. Buyer also represents and warrants to Seller that is familiar with or that it will promptly become familiar with, and that it will remain familiar with all such laws, rules, regulations, orders and treaties. Further, before selling, exporting, re-exporting or transshipping any of the Products – – or using or permitting the use of any of the Products – – Buyer will consult with appropriate legal counsel in the United States to be certain that the transaction or use does not violate any such law, rule, regulation, order or treaty.
8.3 Buyer will indemnify Seller and its officers, directors and employees against any liability and hold each of them harmless from and pay any loss, damage, cost, expense or fine (including, without limitation, legal fees and disbursements, court costs and the cost of appellate proceedings) arising out of or in connection with (i) any of the foregoing representation’s or warranty’s being incorrect, or (ii) any claim or other allegation alleging facts which, if true, would constitute a breach of any such representation or warranty, or (iii) the breach of any of Its commitments under this Section 8.
9.1 Force Majeure. If Seller’s performance under the Transaction Documents is prevented, hindered or delayed by reason of any cause beyond the reasonable control of Seller (any such event being hereafter called an “Event”), such as acts of God, riots, fires, floods, unusually severe weather, extreme heat or cold, power or communications failures, acts or omissions of suppliers, transportation delays, unavailability of supplies or materials, acts or omissions of civil or military authorities, war, acts of terrorism or embargoes, strikes, lockouts or other labor disputes, then Seller will be excused from performance to the extent that its performance is prevented, hindered or delayed. Seller will give Buyer notice specifying the Event, the performance affected and the anticipated date, if any, by which performance can be made. Such excuse from performance will extend so long as the Event continues to prevent, hinder or delay Seller’s performance but Buyer will be entitled to terminate any performance of Seller required in the Transaction Documents If such performance is prevented, hindered or delayed for more than 40 days.
9.2 Compliance with Law. Each party will comply with all applicable laws, regulations and orders bearing on its rights and obligations hereunder.
9.3 Aerial Regulatory Agency Compliance. Among other things, if this transaction involves items installed in any type of aircraft, the sole responsibility to ascertain the necessity for any airworthiness certification and obtain certification or other required approval of aircraft modifications lies either with the manufacturer or supplier of the aircraft, the Buyer, or Buyer’s specialized contractors or subcontractors making such modifications or the operator of the aircraft. Seller does not have the expertise or the authorization to perform or certify regulatory compliance of any aircraft modifications. However, Seller can assist Buyer in obtaining third party consulting and review services of system installations for performance. Assuming that the installation of the airborne sensor is based on installation drawings obtained from Licensor, a licensed customer support engineer will check and confirm that the instrument holes are adequate for unrestricted operation of the Leica airborne sensor system per Seller’s specifications. The Leica customer support engineer will not undertake any modification of the aircraft structure or interior modifications made for the system installation. Seller personnel cannot and will not certify the airworthiness of any installation or compliance with aviation regulations. The Buyer hereby agrees to indemnify, defend and hold harmless Seller from any governmental or private civil action or claims (including without limitation, reasonable attorneys’ fees) arising in tort or under common law, statute, regulation, or order, arising in any manner whatsoever from Buyer’s installation of Leica products to any aircraft, including those installations for which a Leica support engineer has provided any support. This indemnification obligation shall supplement and not replace the indemnification language contained In Section 4.3 of this Agreement.
9.4 Transfer and Assignment. The Transaction Documents and Terms & Conditions will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns (“Transferees”).
9.5 Relationship of the Parties. Seller and Buyer are independent contractors. No agency, partnership, joint venture or other joint relation is created between them. Neither has the authority to bind the other or to incur any obligation on the other’s behalf.
9.6 Governing Law and Jurisdiction. These Terms & Conditions and the Transaction Documents are governed by the laws of the state of Wisconsin, USA, except that state’s conflicts of laws, and the parties submit to the exclusive jurisdiction of the courts in the state of Wisconsin, USA. The parties hereby waive all rights to a jury trial in connection with claims under these Terms & Conditions and the Transaction Documents.
9.7 No Waiver. No waiver of any term or condition herein will be binding unless it is in writing signed by the waiving party. The failure of a party to require full performance of the Transaction Documents, or the waiver by a party of any breach of the Transaction Documents or these Terms & Conditions, will not govern a subsequent enforcement of such terms, or waive any subsequent breach.
9.8 Severability. If a court invalidates any right or restriction herein that is not essential to the commercial purpose hereof, then the remainder of the Transaction Documents and these Terms & Conditions will remain in full force and effect. To the extent legally permissible, the parties will replace any illegal, invalid or unenforceable provision hereof with a valid provision that implements the commercial purpose of the replaced provision.
9.9 Survival. Section 2.2 (Licensed Intellectual Property), 4 (Intellectual Property Ownership), 6 (Limitation of Liability I Indemnification), 7 (Confidentiality), and this Section 9 (Miscellaneous) will survive the performance by each party of its obligations hereunder and will continue in full force and effect.
9.10 Entire Agreement. These Terms & Conditions constitute the entire agreement and understanding between the parties and supersedes all previous understandings, agreements, communications and representations, whether written or oral, concerning the subject matter of these Terms & Conditions. If there is any conflict between the terms of the Transaction Documents and these Terms & Conditions, the terms of the Transaction Documents will control. These Terms & Conditions may be amended, modified or supplemented only by a writing that expressly refers to these Terms & conditions and is signed by the adversely affected party.
9.11 If any legal action is brought to collect moneys due hereunder (including under any Transaction Document), Seller shall be entitled to receive from Buyer its attorneys’ fees and court costs in addition to any other relief it may receive.
9.12 Seller reserves the right to correct clerical, arithmetical or stenographic errors or omissions in quotations, orders, acknowledgments, invoices or other Transaction Documents.
9.13 If the financial condition of the Buyer at any time does not, in the judgment of Seller, justify continuation of the subject transaction on the terms of payment as agreed upon, Seller may require full or partial payment in advance or shall be entitled to cancel any order then outstanding and receive reimbursement for its reasonable cancellation charges, and in the event of bankruptcy or insolvency of the Buyer or in the event any proceeding is brought against the Buyer, voluntary or involuntary, under bankruptcy or any insolvency laws. Seller shall be entitled to cancel any order then outstanding, and shall receive reimbursement for its reasonable cancellation charges. The return of materials to Seller shall not terminate Buyer’s liability for payment of purchase price and compliance with all other Transaction Documents.