These Terms and Conditions govern all solutions and services provided by CapSen Robotics, Inc. (referred to herein as the "Supplier" or “CAPSEN ROBOTICS”), unless otherwise explicitly agreed upon in a signed agreement by Supplier and the Customer.
The Customer hereby agrees to waive any general or specific terms and conditions of its own, irrespective of any clauses therein asserting exclusivity, and even if such terms were not objected to by the Supplier.
In conjunction with the Purchase Order, these terms and conditions collectively constitute the entirety of the contract governing the deliveries outlined herein, and supersede any prior agreements.
1. Price; Taxes. The purchase price stated in the quotation does not include applicable sales, excise, use, or other taxes in effect or later levied. CAPSEN ROBOTICS shall invoice Customer for such taxes and Customer shall pay in accordance with the terms of the invoice unless Customer provides CAPSEN ROBOTICS with an appropriate exemption certificate reasonably in advance of the date the product is delivered.
2. Quotations. Prices and other terms contained in Quotations issued by CAPSEN ROBOTICS are only binding when made in writing and for a maximum period of thirty (30) calendar days after issued, unless stated otherwise in the Quotation.
3. Cancellation. CAPSEN ROBOTICS reserves the right, in its sole discretion, to cancel any order prior to shipment of the applicable product. In such event, CAPSEN ROBOTICS shall reimburse the Customer for any payment made to CAPSEN ROBOTICS for such canceled order.
4. Payment Terms. CAPSEN ROBOTICS will invoice Customer, and Customer will pay such invoice net 30 days unless other payment terms are set forth in the invoice.
4.1. Approval. Orders are subject to CAPSEN ROBOTICS’s on-going credit review and approval.
4.2. Interest. Customer shall pay interest on any amount not paid when due at the maximum rate permitted by applicable law. If Customer fails to pay any amount when due, in addition to any other rights or remedies available to CAPSEN ROBOTICS at law or in equity, CAPSEN ROBOTICS may discontinue the performance of services, discontinue the delivery of the product, or deduct the unpaid amount from any amounts otherwise owed to Customer by CAPSEN ROBOTICS under any agreement with Customer. In any action initiated to enforce the terms of the quotation following a Customer default or product cancellation under an order arising from the quotation, CAPSEN ROBOTICS shall be entitled to recover as part of its damages all costs and expenses, including reasonable attorneys’ fees, in connection with such action.
5. Security Interest. Customer hereby grants to CAPSEN ROBOTICS a purchase money security interest in the Products until all payments have been made. Customer shall sign any financing statements or other documents necessary to perfect CAPSEN ROBOTICS’s security interests in the Products. Where permitted by applicable law, Customer’s signature on the quotation or on a purchase order issued as a result of the quotation gives CAPSEN ROBOTICS the right to sign on Customer’s behalf and file any financing statement or other documents to perfect CAPSEN ROBOTICS’s security interest in the product.
6. Shipment and Risk of Loss.
6.1. FOB Shipping Point. Title and the risk of loss or damage to any Product shall pass to the Customer FOB shipping point (CAPSEN ROBOTICS’ warehouse). Customer is responsible for all freight charges and for filing timely and proper claims against carriers in the event any Product is lost or damaged in transit.
6.2. Delivery Schedule. Any delivery schedule provided by CAPSEN ROBOTICS is purely a good-faith estimate. CAPSEN ROBOTICS has the right to change or delay the delivery schedule if causes beyond its reasonable control prevent the delivery within the stipulated time frame, without giving rise to any compensation due to Customer. CAPSEN ROBOTICS shall inform the Customer of any delivery changes as soon as reasonably practicable.
7. Usage.
7.1. Safety. Customer is responsible for implementing all necessary safety measures and performing their own safety assessment when using CAPSEN ROBOTICS Products. Due to the complexity of systems that include the Products as a component–such as robot cells, vision systems, and mobile robots–and due to the unpredictable nature of the AI software within the Products, when the Products are used to command or communicate with any device–including but not limited to robot arms, actuators, cameras, sensors, machines, and PLCs–CAPSEN ROBOTICS makes no guarantees of the safety, repeatability, or accuracy of any such commands or communications.
7.2. Compatibility. It is the Customer’s responsibility to assess, based on the Documentation made available by CAPSEN ROBOTICS, whether its equipment is compatible with the Products. By purchasing the Products, Customer agrees and confirms that CAPSEN ROBOTICS has provided all information required for Customer to assess the specifications of the Products and their compatibility with Customer’s equipment, and that it is Customer’s sole responsibility to confirm compatibility.
7.3. Prohibitions. CAPSEN ROBOTICS Products shall not be used: (i) for illegal purposes, to perform acts that could be contrary to the applicable law (criminal or otherwise) or that could be prejudicial to CAPSEN ROBOTICS, other Customers or third parties; (ii) for purposes, applications or within industries and/or environments other than those approved by CAPSEN ROBOTICS and/or for which specific certifications are required; (iii) to copy or reverse engineer the Products or to directly
or indirectly prepare competing or derivative Products.
7.4. Installation. Unless explicitly agreed otherwise between Parties, CAPSEN ROBOTICS shall not be responsible for installing and configuring the Products.
CAPSEN ROBOTICS MAKES NO WARRANTY AND ASSUMES NO LIABILITY FOR THE FITNESS OR ADEQUACY OF THE SITE IN WHICH THE PRODUCT IS TO BE INSTALLED OR USED. CUSTOMER INDEMNIFIES CAPSEN ROBOTICS AGAINST ANY CLAIMS, INCLUDING SUBROGATION CLAIMS, ARISING FROM CUSTOMER’S RESPONSIBILITIES HEREUNDER.
8. Product Warranty.
8.1. Hardware/Systems. CAPSEN ROBOTICS warrants to Customer that the CAPSEN ROBOTICS equipment (including its operating software) will perform in substantial compliance with its performance specifications, in the documentation accompanying the Products, for a period of 12 months beginning upon the date of shipment to the Customer.
8.2. Remedy. CAPSEN ROBOTICS’s sole obligations and Customer’s exclusive remedy under any product warranty are limited, at CAPSEN ROBOTICS’s option, to the repair or the replacement of the product or a portion thereof within thirty (30) days after receipt of written notice of such material breach from Customer (“Product Warranty Cure Period”) or, upon expiration of the Product Warranty Cure Period, to a refund of a portion of the purchase price paid by the Customer, upon Customer’s request. Any refund will be paid to the Customer when the product is returned to CAPSEN ROBOTICS. Warranty service outside of normal working hours (i.e. 9:00 A.M. to 5:00 P.M., Monday through Friday, excluding CAPSEN ROBOTICS’s observed holidays), will be subject to payment by Customer at CAPSEN ROBOTICS’s standard service rates.
8.3. Conditions. This warranty is subject to the following conditions: the product: (a) is to be installed in accordance with all CAPSEN ROBOTICS installation instructions; (b) is to be operated exclusively by duly qualified personnel in a safe and reasonable manner in accordance with CAPSEN ROBOTICS’s instructions and for the purpose for which the Products were intended; and, (c) is to be maintained and in strict compliance with all recommended and scheduled maintenance instructions provided with the product and Customer is to notify CAPSEN ROBOTICS immediately if the product at any time fails to meet its printed performance specifications. CAPSEN ROBOTICS’s obligations under any product warranty do not apply to any product defects resulting from (i) improper or inadequate maintenance or calibration by the Customer or its agents; (ii) Customer or third party supplied interfaces, supplies, or software; (iii) use or operation of the product other than in accordance with CAPSEN ROBOTICS’s applicable product specifications and instructions; (iv) abuse, negligence, accident, loss, or damage in transit; (v) improper site preparation; (vi) unauthorized maintenance or modifications to the product; (vii) or viruses or similar software interference resulting from connection of the product to a network.
CAPSEN ROBOTICS does not provide a warranty for any third party Products furnished to Customer by CAPSEN ROBOTICS under the quotation; however, CAPSEN ROBOTICS shall use reasonable efforts to extend to Customer the third party warranty for the product where applicable. The obligations of CAPSEN ROBOTICS described herein are CAPSEN ROBOTICS’s only obligations and Customer’s sole and exclusive remedy for a breach of a product warranty.
8.4. THE WARRANTIES SET FORTH HEREIN ARE THE ONLY WARRANTIES MADE BY CAPSEN ROBOTICS IN CONNECTION WITH THE PRODUCT, THE SOFTWARE, AND THE TRANSACTIONS CONTEMPLATED BY THE QUOTATION, AND ARE EXPRESSLY IN LIEU OF ANY OTHER WARRANTIES, WHETHER WRITTEN, ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CAPSEN ROBOTICS may use refurbished parts in the manufacture of the Products, which are subject to the same quality control procedures and warranties as for new Products.
9. Return Policy. If there is a problem with an order, CAPSEN ROBOTICS wants to correct it as soon as possible. Please note the following instructions before returning merchandise to CAPSEN ROBOTICS.
9.1. Authorization. The Customer Services Department of CAPSEN ROBOTICS must authorize all returns. Customer shall pay all shipping charges for returns.
9.2. Penalty. Returns after sixty (60) days of shipment shall be subject to a restocking charge.
10. Patent Infringement Claims. CAPSEN ROBOTICS shall indemnify, defend, and hold harmless Customer against any new claim that an CAPSEN ROBOTICS Product provided in the quotation infringes, misappropriates, or violates any third party intellectual property right, whether patent, copyright, trademark, or trade secret, provided that Customer (1) provides CAPSEN ROBOTICS prompt written notice of the claim, (2) grants CAPSEN ROBOTICS full and complete information and assistance necessary for CAPSEN ROBOTICS to defend, settle, or avoid the claim, and (3) gives CAPSEN ROBOTICS sole control of the defense or settlement of the claim.
10.1. Applicability. The provisions of this section shall not apply if the product is sold or transferred.
10.2. Modification. If (a) a CAPSEN ROBOTICS Product is found or believed by CAPSEN ROBOTICS to infringe such a claim; or, (b) Customer has been enjoined from using the CAPSEN ROBOTICS Product pursuant to an injunction issued by a court of competent jurisdiction, CAPSEN ROBOTICS may, at its option: (i) procure the right for Customer to use the product; (ii) replace or modify the product to avoid infringement; or (iii) refund to Customer a portion of the product purchase price upon the return of the original product. CAPSEN ROBOTICS shall have no obligation for any claim of infringement arising from: CAPSEN ROBOTICS’s compliance with Customer’s designs, specifications, or instructions; CAPSEN ROBOTICS’s use of technical information or technology supplied by Customer; modifications to the product by Customer or its agents; use of the product other than in accordance with the product specifications or applicable written product instructions; use of the product with any other product; if infringement would have been avoided by the use of a current unaltered release of the Products; or use of the CAPSEN ROBOTICS Product after CAPSEN ROBOTICS has advised Customer, in writing, to stop use of the CAPSEN ROBOTICS Product in view of the claimed infringement. CAPSEN ROBOTICS will not be liable for any claim where the damages sought are based directly or indirectly upon the amount of use of the product regardless of whether such claim alleges the product or its use infringes or contributes to the infringement of such claim. The terms in this section state CAPSEN ROBOTICS’s entire obligation and liability for claims of infringement, and Customer’s sole remedy in the event of a claim of infringement.
11. Limitation of Liability. THE TOTAL LIABILITY, IF ANY, OF CAPSEN ROBOTICS FOR ALL DAMAGES AND BASED ON ALL CLAIMS, WHETHER ARISING FROM BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHER TORT, OR OTHERWISE ARISING FROM A PRODUCT, LICENSED SOFTWARE, AND/OR SERVICE IS LIMITED TO THE PRICE PAID HEREUNDER FOR THE PRODUCT, LICENSED SOFTWARE, OR SERVICE.
12. DISCLAIMER. IN NO EVENT SHALL CAPSEN ROBOTICS OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST REVENUES OR PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES WHETHER ARISING FROM BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHER TORT.
13. Indemnification. Customer agrees to indemnify, defend and hold CAPSEN ROBOTICS and its parent, subsidiary, or affiliated companies, members, managers, officers, employees, agents and assignees harmless from and against any expenses incurred by or claims made against CAPSEN ROBOTICS arising out of any negligent actions of Customer including but not limited to the maintenance, repair or alteration of any product, or the improper assembly or incorporation of the product into any other device; actual or alleged breach or violation of any contract, law, rule, regulation, or by-law; libel, slander or other form of defamation; breach of any provision of these terms and conditions; and acts, errors or omissions of Customer or any of its agents, servants, employees, contractors, partners, shareholders, affiliates or representatives. For purposes of this indemnification, the term “expenses or claims” shall mean and include (i) all losses, obligations, expenses, actual and consequential damages, taxes and costs reasonably incurred in preparing for, defending or settling any demand, investigation, suit, action, claim, inquiry or proceeding, whether or not a formal inquiry, proceeding or investigation had been commenced; and (ii) reasonable accountants’, legal and expert
witness fees, costs of investigation and proof of facts, court costs, other litigation expenses and travel and living expenses. Customer shall give CAPSEN ROBOTICS immediate written notice of any demand, investigation, inquiry, action, suit, proceeding or claim. CAPSEN ROBOTICS, at its sole option, shall have the right to defend at Customer’s expense any such liability or claims in which either CAPSEN ROBOTICS or Customer or both are named as defendants, or reasonably are expected to be named. CAPSEN ROBOTICS’ conduct of the defense shall not diminish Customer’s obligation to indemnify CAPSEN ROBOTICS hereunder. This indemnity shall continue in full force and effect subsequent to and notwithstanding any termination of these terms and conditions.
Customer shall, at its own expense, maintain and carry in full force and effect, all types and amounts of insurance required by applicable law and all such insurance as is necessary to protect the CAPSEN ROBOTICS from and against any third party claims, including commercial general liability (including product liability) in a sum no less than $1,000,000.00 per occurrence, $1,000,000.00 personal and advertising injury and $3,000,000.00 aggregate with financially sound and reputable insurers.
14. Confidentiality. Each party shall maintain as confidential any information furnished or disclosed to one party by the other party, whether disclosed in writing or disclosed orally, relating to the business of the disclosing party, its customers, and the quotation and its terms, including the pricing terms under which Customer has agreed to purchase the Products. Each party shall use the same degree of care to protect the confidentiality of the disclosed information as that party uses to protect the confidentiality of its own information, but in no event less than a reasonable amount of care. Each party shall disclose such confidential information only to its employees having a need to know such information to perform the transactions contemplated by the quotation. The obligation to maintain the confidentiality of such information shall not extend to information that (a) is or becomes generally available to the public without violation of this Agreement or any other obligation of confidentiality or (b) is lawfully obtained by the receiving party from a third party without any breach of confidentiality or violation of law.
15. General Terms. The following additional terms shall be applicable to the purchase of a product:
15.1. Force Majeure. Each party shall be excused from performing its obligations (except for payment obligations) arising from any delay or default caused by events beyond its reasonable control including, but not limited to, acts of God, acts of third parties, epidemics, pandemics or outbreak of communicable disease, acts of any civil or military authority, fire, floods, war, embargoes, labor disputes, acts of sabotage, riots, accidents, delays of carriers, subcontractors or suppliers, voluntary or mandatory compliance with any government act, regulation or request, shortage of labor, materials or manufacturing facilities.
15.2. Bankruptcy. If Customer becomes insolvent, is unable to pay its debts when due, files for bankruptcy, is the subject of involuntary bankruptcy, has a receiver appointed, or has its assets assigned, CAPSEN ROBOTICS may cancel any unfulfilled obligations, or suspend performance; however, Customer’s financial
obligations to CAPSEN ROBOTICS shall remain in effect.
15.3. Assignment. Customer may not assign any rights or obligations in connection with the transactions contemplated by the quotation, or the Products purchased therein, without the prior written consent of CAPSEN ROBOTICS, and any attempted assignment without such consent shall be of no force or effect. Notwithstanding the foregoing, Customer may assign any rights or obligations in connection with the transactions contemplated by the quotation, or the Products purchased therein, with the prior consent of CAPSEN ROBOTICS, which consent shall not be unreasonably withheld, to its parent company or to any purchaser of all or substantially all of Customer’s assets, or to any successor by way of merger, consolidation or similar transaction.
15.4. Export. Customer shall assume sole responsibility for obtaining any required export authorizations in connection with Customer’s export of the Products from the country of delivery.
15.5. Governing Law. All transactions contemplated by the quotation shall be governed by the laws of the Commonwealth of Pennsylvania, without regard to that state’s choice of law principles. Any dispute arising hereunder shall be brought in the Court of Common Pleas of Allegheny County, or the United States District Court for the Western District of Pennsylvania, if jurisdiction can be obtained. EACH PARTY, KNOWINGLY AND AFTER CONSULTATION WITH COUNSEL, FOR ITSELF, ITS SUCCESSORS AND ASSIGNS, WAIVES ALL RIGHT TO TRIAL BY JURY OF ANY CLAIM ARISING WITH RESPECT TO THIS AGREEMENT OR ANY MATTER RELATED IN ANY WAY THERETO.
15.6. Entire Agreement. This Agreement, the terms and conditions set forth in the quotation and the invoice constitute the entire understanding and agreement by and between the parties with respect to the transactions contemplated, and supersede any previous understandings or agreements between the parties, whether written or oral, regarding the transactions contemplated by the quotation. No additional terms, conditions, consents, waivers, alterations, or modifications shall be binding unless in writing and signed by the parties. Customer’s additional or different terms and conditions, whether stated in a purchase order or other document issued by Customer, are specifically rejected and shall not apply to the transactions contemplated by the quotation unless incorporated herein in writing.
15.7. Headings. The headings in the quotation are intended for convenience only and shall not be used to interpret the quotation.
15.8. Severability. If any provision of the quotation is deemed to be illegal, unenforceable, or invalid, in whole or in part, the validity and enforceability of the remaining provisions shall not be affected or impaired, and shall continue in full force and effect.
15.9. Notices. Notices or other communications shall be in writing, and shall be deemed served if delivered personally, or if sent electronically, by overnight mail or courier,
or by certified mail, return receipt requested and addressed to the party at the address set forth in the quotation.
15.10. Performance. The failure of Customer or of CAPSEN ROBOTICS at any time to require the performance of any obligation will not affect the right to require such performance at any time thereafter. Course of dealing, course of performance, course of conduct, prior dealings, usage of trade, community standards, industry standards, and customary standards and customary practice or interpretation in matters involving the sale, delivery, installation, use, or service of similar or dissimilar Products or services shall not serve as references in interpreting the terms and conditions of the quotation.
15.11. Obligations. Customer’s obligations are independent of any other obligations the Customer may have under any other agreement, contract, or account with CAPSEN ROBOTICS. Customer will not exercise any right of offset in connection with the terms and conditions in the quotation or in connection with any other agreement, contract, or account with CAPSEN ROBOTICS.
15.12. Effective Date. This Agreement will become effective on the date when both Parties have accepted and signed a Purchase Order referencing a Quotation issued by CAPSEN ROBOTICS.