General Terms and Conditions
GENERAL TERMS AND CONDITIONS FOR THE SALE OF AGV PRODUCTS AND SERVICES
These General Terms and Conditions (“Terms”) apply and govern the sale of AGV System Products and Services (as defined below) by Rocrich AGV Solutions, LLC (“Rocrich”), and are incorporated into any Order (as defined below). By issuing any Order to Rocrich, you (“Company”) hereby expressly agree to the terms and conditions set forth in these Terms.
1. Definitions and General Terms of Construction.
1.1 Definitions. In addition to terms defined elsewhere in this Terms and an applicable Quote, the following terms shall have the following meanings, unless the context otherwise clearly requires:
“Affiliate” or “Affiliates” means (in relation to either Party) any entity directly or indirectly controlled by, controlling, or under common control with that Party, including any of the foregoing which becomes an Affiliate after the Effective Date.
“AGV Unit(s)” means the automated guided vehicle(s) being delivered as set forth in a Quote.
“Applicable Law” means those laws (common or statutory), rules, regulations, codes, administrative and judicial orders and directives, rulings, interpretations, permit conditions and restrictions, or similar requirements or actions of any federal, state, provincial, or local government, or any agency or executive or administrative body of any of the foregoing, in each case that govern or pertain, as of the date of any applicable Order, to (i) the Parties’ respective obligations under these Terms or and Order, and (ii) Rocrich sale and/or Company’s purchase of AGV System Products and/or Services.
“Business Day” means any day other than a Saturday, a Sunday or other day on which banks are authorized or required by Texas or United States federal law to close.
“Claim(s)” means all claims (including those for property damage, environmental damage, personal injury, illness, disease, maintenance, cure, loss of consortium, loss of support, or death), damages, liabilities (including contractual liabilities), losses, demands, liens, encumbrances, government imposed fines and/or penalties, causes of action of any kind (including actions in rem or in personam), obligations, costs, judgments, interest, and awards (including payment of reasonable attorneys’ fees and costs of litigation), of any kind or character, whether under judicial proceedings, administrative proceedings or otherwise, and expressly including any claims that may be brought by (or losses suffered by) spouses, heirs, survivors, legal representatives, successors, or assigns.
“Consequential Damages” means and include any and all indirect, incidental, special, punitive, exemplary, or consequential damages or losses of any nature whatsoever (whether or not foreseeable), including damages or losses for lost product or production, lost profit or revenue, loss of data, lost business, loss of or inability to use property and equipment, losses from business interruptions, losses resulting from failure to meet other contractual commitments or deadlines, or loss from facility downtime.
“Force Majeure” means any act or event that renders it wholly or partially impossible for Rocrich to perform its obligations under an Order or the Quote or delays Rocrich’s ability to do so, when such act or event (i) is beyond the reasonable control of Rocrich, (ii) is not due to the fault or negligence of Rocrich, and (iii) could not have been avoided by Rocrich by the exercise of reasonable diligence (which may include acts of God, war, terrorist threats or acts, riots or other civil unrest, pandemic, epidemic, changes in government regulations, actions, embargoes or blockades in effect on or after the Effective Date, strikes, labor stoppages, or other industrial disturbances).
“Manuals” means manuals, guidelines and other written materials with respect to the use, operation and maintenance, or installation of the AGV System Products.
“Notices” means notices, notifications, requests, consents, directions, instructions, and other communications required or permitted to be given under this Terms.
“Order” means the written purchase order placed by Customer for the Scope of Services defined in Quote
“Parts” means any components, parts, accessories, or related materials included as part of the AGV System Services.
“Person” means a natural person, corporation, partnership, joint venture, limited liability company, unincorporated organization, trust, association, or other entity.
“Quote” means the Rocrich quotation defining the Scope of Services to be performed.
“Rocrich Indemnified Parties” means Rocrich, its Affiliates, and its and their respective directors, stockholders, officers, employees, agents, and assigns.
“Rocrich Intellectual Property” means Rocrich Proprietary Information and Rocrich’s copyrights, patents, trade secrets, proprietary software or firmware, or other intellectual property associated with or incorporated in any ideas, concepts, know-how, techniques, processes, reports, or works of authorship owned, developed or created by Rocrich, its Affiliates, and/or its subcontractors, expressly including any of the foregoing used or included in any AGV System or related AGV System software.
“Rocrich Proprietary Information” means the AGV System(s), Manual(s), and accompanying materials, and all related inventions, discoveries, concepts, data, information, know-how, suggestions, modifications, ideas, original expressions, working models, or other enhancement or improvement of the AGV System, whether patentable or not, and all rights, title, and interest in and to each of the foregoing.
“Scope of Services” means the work described with the Quote.
“Taxes” means all fees or charges imposed, assessed, or levied by any governmental department, agency, or taxing authority and shall include taxes imposed upon income, personnel, or property, sales and use taxes, value added taxes, goods and services taxes, and excise taxes or other charges of a similar nature, customs or other duties, customs agent fees and other such charges and fees.
“Third Party” means any Person other than Company, Rocrich, and its Affiliates.
“Third-Party Intellectual Property” means open-source software programs that are subject to an open-source license agreement or other software, documents, data, content, specifications, products, equipment, components of or relating to the AGV System(s) that is not proprietary to Rocrich.
1.2 General Terms of Construction. As used in these Terms, unless expressly stated otherwise, references to (a) “includes” or “including” means “including, without limitation” or “including, but not limited to”; (b) “and/or” means “either or both”; (c) “or” means “either” and (d) a “Party” means Rocrich or Company and the “Parties” means Rocrich and Company.
2. General Terms of Quote.
2.1 All Orders placed with Rocrich are subject to and governed by these Terms.
2.2 No other, additional, or different terms and conditions in any written or oral communication with respect to a transaction for the Scope of Services (including the terms and conditions in any Company request for proposal, request for quote, request for bid, Order, purchase order, or similar document) shall vary or amend these Terms
2.3 In the event of a conflict between the terms of these Terms and the terms in any Order, these Terms shall control, unless the Order (i) makes specific reference and identification (by Section and/or subsection number) to the term(s) or provision(s) of these Terms to be modified, (ii) explicitly states the intention of the Parties to effect the modification thereof, and (ii) is executed on behalf of each Party by an authorized officer of the Party. Such modifications shall be effective for that Order only, and no agreement to modify the terms and conditions of these Terms with respect to any particular Order shall have the effect of varying or amending those terms and conditions (or any others in these Terms) with respect to any other or subsequent Order. Each Order shall constitute a separate agreement between the Parties.
3. Delivery of Scope of Services.
3.1 Delivery of Scope of Services: Rocrich shall deliver the Scope of Services to Company as set forth in the applicable Order and/or Quote, which shall identify the AGV Unit or component, serial number when available, reported condition, authorized diagnostic or repair scope, pricing, estimated schedule, service location, and parts and materials assumptions. Unless and except as expressly stated in the Order, diagnostic findings and estimates are not non-binding and do not guarantee final costs, completion date or performance and repair.
3.6 Pre-Service Inspection: Prior to performing any Scope of Services, Rocrich may inspect test, troubleshoot, and disassemble the affected AGV Unit or component as reasonably necessary to determine the cause and extent of the reported condition. If the inspection identifies additional damage, unsafe conditions, obsolete or unavailable parts, third-party modifications, or work outside the authorized scope, Rocrich may suspend the affected work and provide a revised estimate or change request. Rocrich will not perform additional chargeable work exceeding the authorization stated in the applicable Order without Company’s written approval, except for actions reasonably necessary to place the AGV Unit or work area in a safe condition.
4. Pricing, Invoicing and Payment;.
4.1 Pricing, Invoicing and Payment. Prices and payment terms for the Scope of Services (the “Price”) are established in the Order and may only be amended upon the mutual written agreement of the Parties. Unless expressly set forth in the applicable Order.
4.2 Invoices for the Order are due upon receipt. Invoices for the Order that are not paid in a timely manner will bear interest at the lesser of (i) one and one-half percent (1.5%) per month, or (ii) the highest rate allowed by Applicable Law until paid in full.
5. Company Responsibilities.
5.1 Company agrees to comply with the responsibilities set forth in this Section 5, including all of the following:
a) Company shall warrant that the AGV System will be operated by appropriately trained users who are able to identify and record faults, and report such faults to Rocrich in a timely and suitable manner with the necessary information required by Rocrich to diagnosis such faults,
b) Company shall provide Rocrich-designated personnel with all necessary and required access to the AGV Systems in order for Rocrich to provide the Scope of Services.
c) Company shall ensure that Rocrich (or any subcontractors) are able to access the AGV Systems remotely via a secure connection at all times, including maintaining adequate router connection or similar network access. All connections and user authorizations to the system must be available and installed and at pricing set forth in the Quote. Company shall inform Rocrich about any changes to the dial-up procedure, IP addresses, or passwords which are required for remote access. Company shall make the AGV System accessible to Rocrich via remote access.
6. Taxes.
6.1 Unless otherwise stated in the Quote, prices and rates quoted by Rocrich and other charges payable by Company are exclusive of Taxes. If not included in the price or rates stated in the Quote, such Taxes shall be shown as a separate line item on the invoices submitted by Rocrich, in addition to the prices and rates stated in the Quote and shall be for Company’s account. Should Company claim an exemption from any Taxes, Company shall provide such exemption information to Rocrich at the time of AGV System Products and/or AGV System Services order placement. It shall be the responsibility of Company to ensure that its proof of exempt status remains current.
6.2 Rocrich reserves the right to adjust the Price for any Service to the extent of any tariffs, duties, or similar charges, which become applicable to the Service by any governmental action, including but not limited to any modification of current law or related exemptions, after the date of binding quote. The Company agrees to pay any such charges promptly upon notification.
7. Termination; Breach; Remedies.
7.1 Termination of Orders for Cause.
a) Company may terminate an affected Order if Rocrich materially fails to perform the Scope of Services expressly stated in the applicable Quote and does not cure such failure within thirty (30) days after receiving written notice that describes the breach in reasonable detail; provided that, if the breach cannot reasonably be cured within thirty (30) days, Rocrich shall not be in default if it begins cure within that period and diligently pursues cure to completion. Termination shall apply only to the affected and unperformed portion of the Order.
b) Rocrich may suspend performance or terminate an affected Order upon written notice if Company materially breaches the Order and fails to cure such breach within ten (10) days after receiving written notice that describes the breach in reasonable detail. Notwithstanding the foregoing, Rocrich may suspend performance immediately if Company fails to pay an undisputed amount when due, fails to provide access, information, approvals, or a safe work environment required for performance of the Scope of Services, or otherwise prevents Rocrich from performing the affected work. If such condition remains uncured for ten (10) days after written notice, Rocrich may terminate the affected Order.
7.1.1 Effect of Termination for Cause. Upon termination of an Order for cause: (a) Company shall pay Rocrich for all Scope of Services properly performed through the effective date of termination, all conforming parts and materials delivered or irrevocably committed for the affected Order, and all reasonable, noncancelable third-party costs incurred for the affected Order; (b) Rocrich shall refund any prepaid amounts attributable to Scope of Services not performed, less amounts properly due under clause (a); (c) each Party shall promptly return the other Party’s property in its possession, subject to any rights expressly granted under the Order; and (d) termination shall not affect rights, remedies, payment obligations, warranty rights relating to completed and paid work, or provisions that accrued before termination or by their nature survive termination.
a) Invoices then known and outstanding at the time that any Order is terminated shall survive any such termination and shall remain due and owing notwithstanding such termination of the Order.
8. Termination for Convenience. Neither Party may terminate any Orders without cause. Remote Access.
Company agrees to allow Rocrich remote access to Company’s IT infrastructure, including Company’s local area network (LAN) and Company’s, as applicable, servers, in order to perform the Services. Company shall provide prompt written notice to Rocrich if Rocrich access rights to Company’s IT infrastructure change in any way.
9. Confidentiality; Intellectual Property, Data.
9.1 Each Party receiving Confidential Information (the “Receiving Party”) from the other Party (the “Disclosing Party”) agrees that (i) for the Term and for a period of five (5) years thereafter, it shall maintain and safeguard the confidentiality of all such Confidential Information, handling and treating it with at least the same degree of care the Receiving Party observes and provides for its own confidential information, and in all events with at least a reasonable standard of care; and (ii) it shall not use such Confidential Information other than in furtherance of its obligations hereunder, and for no other purpose. The term “Confidential Information” shall mean and include confidential, non-public information provided by the Disclosing Party to the Receiving Party.
9.2 Company acknowledges and agrees that the Rocrich Proprietary Information and Rocrich Intellectual Property shall, at all times, be and remain the exclusive property of Rocrich, and, except as expressly provided herein, nothing in these Terms or any Order shall be construed to convey to Company or any Third Party any right, title, interest, or license in any of the foregoing. Except for the Limited Use Licenses expressly granted in Section 10 above, nothing in these Terms or any Order shall be construed to convey or license to Company or any Third Party any right, title, or other interest in the Rocrich Proprietary Information whatsoever, and Rocrich hereby expressly reserves all other rights therein.
9.3 Company agrees that none of its work or deliverables under any Order shall be deemed to be “works made for hire” under the U.S. Copyright Act (Title 17 of the U.S. Code), provided that in the event and to the extent such works are determined not to constitute “works made for hire” as a matter of law, Company hereby irrevocably assigns and transfers to Rocrich all right, title and interest in such copyrighted works.
9.4 Company acknowledges that the AGV system and related software systems gather data and information in various forms and quantities and may transfer such data to Rocrich.. Company grants Rocrich a perpetual right to use the data and information free of charge for the purposes of fulfilling its obligations under the Order and the maintenance, improvement of its development of the automated guided vehicles and related systems and its services in general, including integration of the data with other data.
10. Compliance with Applicable Laws.
Company agrees to comply with and conform to all Applicable Laws relating to the operation of the AGV System Products. Company shall fully indemnify, defend, and hold harmless the Rocrich Indemnified Parties from and against all Claims associated with noncompliance of this Section 12.
11. Warranties.
11.1 Services Warranty. Rocrich warrants that the Services shall be performed in a workmanlike manner and free from material defects for a period of ninety (90) days from the date of Installation.
11.2 AGV System Products and Parts Warranty. Rocrich warrants that the AGV System Products and Parts will be free from material defects for a period of one (1) year from the date of delivery of such parts to Company’s facility
11.3 No Other Warranties. EXCEPT AS OTHERWISE PROVIDED HEREIN, ROCRICH MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO THE AGV SYSTEM, THE SERVICES, THE ROCRICH INTELLECTUAL PROPERTY, OR ANY THIRD-PARTY INTELLECTUAL PROPERTY, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY, (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (C) WARRANTY OF ANY MINIMUM TRANSPORT OR PERFORMANCE REQUIREMENTS, OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
12. Waiver of Consequential Damages, and Limitation of Liability.
12.1 Waiver of Certain Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, OR FOR ANY CLAIMS FOR PUNITIVE DAMAGES, IN CONNECTION WITH THESE TERMS AND/OR ANY ORDER, THE AGV SYSTEM, OR THE INSTALLATION SERVICES, EVEN IF NOTICE WAS GIVEN OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE.
12.2 Consequential Damages Exclusion. Without negating the preceding general exclusion of Consequential Damages in Section 14.4, the Parties expressly agree that Claims with respect to the following shall not be considered Consequential Damages and are recoverable between the Parties: (i) Rocrich Claims with respect to compensation due it under any Order, (ii) damages for breaches of a Party’s obligations with respect to Confidential Information or Intellectual Property of the other Party, or (iii) Claims with respect to which a Party is entitled to indemnification under these Terms.
12.3 Limitation of Liability. Except for and excluding the Parties’ indemnification obligations under Sections 14.1 and 14.2 above, Rocrich total cumulative liability under any Order shall not exceed the amount of the fees paid by Company under such Order.
13. Assignment and Subcontracting.
Rocrich may assign any Order (or any rights and interests herein) to an Affiliate or subcontract any portion of provision of the Services. Company shall not assign any Order nor any rights or interest without the prior written consent of Rocrich. Subject to the foregoing, Orders shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assignees.
14. Force Majeure.
Except for the duty to make payments hereunder when due, and the indemnification provisions under these Terms, neither Party shall be considered in breach of these Terms or any Order if prevented from performing due to an event of Force Majeure. If any period of Force Majeure preventing performance continues for more than thirty (30) days, either Party may terminate the effected Order by giving five (5) days written notice to the other Party. Rocrich shall be paid for all parts of the AGV System provided and/or produced or manufactured to the date of termination, all Installation Services provided to the date of termination, and any other reasonable costs incurred as a result of such termination (including Rocrich’s standard termination and/or restocking charges). “Force Majeure” means any act or event that renders it wholly or partially impossible for the affected Party to perform its obligations under any Order or delays such affected Party’s ability to do so, when such act or event (i) is beyond the reasonable control of the affected Party, (ii) is not due to the fault or negligence of the affected Party, and (iii) could not have been avoided by the affected Party by the exercise of reasonable diligence (which may include, but is not limited to, acts of God, war, terrorist threats or acts, riots, or other civil unrest, pandemic, epidemic or any other public health crisis, changes in government regulations, actions, embargoes, or blockades in effect on or after the Effective Date, strikes, labor stoppages, or other industrial disturbances.)
15. Notices.
All Notices shall be in writing and shall be deemed to have been duly given if delivered (a) in person, by courier or by overnight delivery service, with independent proof of delivery, or (b) via confirmed email. Unless otherwise specified herein (such as Notices to be delivered to a Party’s representative), Notices shall be addressed to the Party at the physical or email address set forth in the Order Notices sent in accordance with this Section 18 shall be deemed received on the third Business Day after the date such notice was sent.
16. Governing Law; Arbitration; Jury Waiver; Attorneys’ Fees.
16.1 Governing Law and Jurisdiction. These Terms shall be governed by and construed in accordance with the laws of the State of Texas. Any controversy, claim or dispute, other than a claim by Rocrich against Company for monies owed, arising out of or relating in any way to Orders or its performance or breach, including a dispute as to the validity or existence of this Terms, any Order, or this Section 19.1 or as to the arbitrability of any such dispute, which cannot promptly be resolved amicably by the parties shall be submitted for arbitration by three (3) arbitrators under the Commercial Arbitration Rules of the American Arbitration Association. Arbitration will take place in Harris County, Texas. The decision of the arbitrators shall be in writing with written findings of fact and be final and binding on the parties. The arbitration will be conducted in accordance with the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. The arbitrators are empowered to award money damages but are not empowered to award punitive, treble, exemplary or consequential damages or specific performance. The provisions of this Section 19.1 are independent of the remaining provisions of these Terms and shall continue in effect even though one or more provisions of these Terms shall be determined to be null or void. This agreement to arbitrate shall survive termination or expiration of this Agreement and continue in full force and effect thereafter.
16.2 Jury Waiver. TO THE EXTENT ALLOWED BY THE GOVERNING LAW, EACH PARTY HEREBY WAIVES ALL RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY LITIGATION INVOLVING THIS THESE TERMS. Nothing herein shall prohibit a Party from availing itself of a court of competent jurisdiction for the purpose of injunctive relief.
16.3 Attorneys’ Fees. In the event either Party institutes suit to enforce any right or obligation against the other arising from or incidental to any Order, the prevailing Party shall be entitled to recover, in addition to any damages or other relief awarded to it, reasonable attorneys’ fees, court costs, fees of testifying experts or consultants, and other expenses related thereto.
17. Severability.
If any term or provision of these Terms is found to be inconsistent with or contrary to Applicable Law or public policy, such term or provision shall be deemed to be modified to the extent required to comply with Applicable Law or public policy (it being the intention of the Parties to enforce to the fullest extent all terms of these Terms) and as so modified, these Terms shall continue in full force and effect. In the event such term or provision cannot be deemed modified automatically, the Parties shall attempt to reach agreement on a conforming modification to such term or provision. In the event any such term or provision cannot be modified to comply with Applicable Law, then said term or provision shall be deemed to be deleted from these Terms and the remaining terms and conditions shall remain in full force and effect.
18. Survival.
The provisions of Sections 6, 7, 11, 13, 14, and 18 and all other provisions that by their nature extend beyond the termination or expiration of any Order.
19. Entire Agreement; Headings; No Oral Modification; Counterpart Execution.
These Terms embodies the entire agreement between the Parties with respect to Rocrich’s sale and provision of AGV System Products and AGV System Services and supersedes and replaces all other agreements existing between Rocrich and Company with respect to transactions. Neither of the Parties shall be bound by any conditions, definitions, warranties, understandings or representations with respect to the subject matter of any Order other than as expressly provided herein. The headings contained in these Terms and the Quote are for reference purposes only and shall not affect in any way the meaning or interpretation of the Order. No amendments or modifications shall be effective unless in a writing signed by an authorized officer of each Party.
20. Waiver of Terms.
No waiver by a Party of any of the terms, provisions, or conditions hereof shall be effective unless said waiver shall be in a writing signed by an authorized officer of the Party against whom the waiver is sought to be enforced. The failure of either Party to enforce any term, provision, or condition of these Terms shall in no manner affect the right to enforce the same at a later time, and the waiver by either Party of any breach of any term, provision, or condition in these Terms shall not be construed to be a waiver by such Party of any subsequent or succeeding breach of such term, provision, or condition or a waiver by such Party of any breach of any other term, provision, or condition.
21. Independent Contractor.
Rocrich is an independent contractor and nothing herein shall be construed as creating any agency, partnership, joint venture, or other joint enterprise between the Parties. Neither Party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party