OPEN AVATAR INC., DBA ROVER ROBOTICS
STANDARD TERMS & CONDITIONS EFFECTIVE AS OF 3/20/2018
Acceptance. These Standard Terms and Conditions (“Terms”), together with an Open Avatar Inc., DBA Rover Robotics (“Rover”) Quote and Invoice, constitute the entire agreement and understanding of Rover and Customer with respect to the evaluation, purchase and sale of Rover's Products. If Customer’s purchase order contains provisions inconsistent with or in addition to the provisions hereof, these Terms shall prevail. Customer’s acceptance of delivery of or payment for any Products provided hereunder shall constitute Customer’s acceptance of all Terms.
Definitions. "Customer" means the customer identified in the Quote and Invoice. “Equipment” means the robot, hardware or equipment portion of a Product. "Products" means the Equipment, Software and other products and related maintenance and other services that are specifically identified in the Quote/Invoice. "Quote" means the most recent sales quotation that specifies the Products to be evaluated and/or purchased by Customer. “Invoice” means an itemized bill for goods sold or services rendered. “Software” means object code version of any software incorporated into or provided for use in or with a Product.
Payment Terms. Unless otherwise stated on Rover’s Quote or Invoice, Customer shall pay all amounts due for Products purchased hereunder in U.S. dollars within 30 days after the date of Rover’s Invoice. Overdue amounts shall bear interest in an amount equal to the lesser of (a) 1.5% of the unpaid balance per month and (b) the highest interest rate permitted by applicable law. Customer shall not withhold or set off from any amounts due to Rover, any amounts claimed to be owed by Rover to Customer for any reason whatsoever.
Prices. Unless otherwise expressly indicated in writing by Rover in a Quote and Invoice, (a) prices for all Products are as noted on Rover’s price list as in effect on date of shipment; and (b) all prices are based on quantity indicated and are FOB destination (as defined in Incoterms 2010).
Taxes. Customer will pay or reimburse Rover for all sales, use, value-added and other taxes (except taxes on Rover’s net income), and all customs, duties and tariffs now or hereafter claimed or imposed by any governmental authority upon the sale of the Products or licensing of the Software to Customer, or payments to Rover under this Agreement.
Remedies. If Customer fails to pay when due any amount Customer owes to Rover on account of Products, Rover shall have, in addition to any other rights of Rover, the right (without liability of Rover) to repossess such Products or to require Customer to effect (at Customer’s expense) return delivery of such Products to Rover. In addition, until Customer has paid to Rover the entire amount due to Rover for such Products, Rover shall retain a security interest in such Products in the amount of the full purchase price plus all other amounts due hereunder and all costs of collection incurred by Rover (including but not limited to court costs and reasonable attorneys' fees), and Rover shall retain all rights and remedies of a secured party under the Uniform Commercial Code as in effect at the time of delivery of such Products. A copy of Rover’s Invoice may be filed with the appropriate authorities at any time as a financing statement or chattel mortgage in order to perfect Rover’s security interest. Upon the request of Rover, Customer will execute any financing statements and other instruments necessary or appropriate for Rover to perfect its security interest.
Shipment. Delivery of all Products shipped by Rover to Customer hereunder is FOB destination (as defined in Incoterms 2010). Rover shall make reasonable efforts to effect shipment on or before the scheduled shipping date(s) reflected on Rover’s Quote or Invoice, but shipping dates are not guaranteed. If no shipping date is specified, shipment will be made on date(s) selected by Rover. In no event shall Rover be liable for any damages or penalties for delay in delivery or for failure to give notice of delay. Delivery may be made in advance of any scheduled delivery date upon reasonable prior notice to Customer. Except as specified in Rover’s Quote, all items will be packed for shipment and shipped in accordance with Rover’s standard practices.
Risk of Loss. All risk of loss of or damage to Products shall be assumed by Customer upon delivery to the destination specified by Customer.
Inspection. Customer shall carefully inspect all deliveries of Products and report promptly to Rover (but in any event within 5 calendar days after receipt of shipment) any alleged error, shortage, defect or nonconformity of such Products. Any failure by Customer to inspect and report as provided herein shall constitute a waiver by Customer of any claim or right of Customer against Rover arising with respect to any such error, shortage, defect or nonconformity which was reasonably discoverable by such an inspection.
Evaluation. If specified in an applicable Quote, Rover agrees to provide one (1) unit of the Product to Customer for testing purposes without charge. Rover grants Customer a license to use the Product subject to the terms and conditions set forth within this Section. Customer shall hold and/or use evaluation units of Product subject to the terms hereof. Customer shall have the right to evaluate the Product for the period of time specified in the Quote, or if none is stated therein, 7 days (“Evaluation Period”). During the Evaluation Period, Customer shall maintain the Product in an undamaged condition; Customer shall be solely responsible for any damage to the Product, normal wear and tear excepted. At the end of the Evaluation Period, Customer shall either (a) return the Product to Rover within 7 days following the end of the Evaluation Period or (b) pay the purchase price for the Product at current price list pricing. During the Evaluation Period, Customer shall: (i) use, test and evaluate the Product in test and/or live environments; (ii) provide to Rover reports regarding its use of the Product and a final written report concerning Customer’s overall evaluation of the Product; and (iii) provide Rover with prompt reports of any errors, problems (including any problem which causes the Product to cease to function), defects or suggestions for change, modification or improvement of the Product. Customer agrees to take all steps necessary to ensure that the Product shall not be disclosed to, or used by any person, association or entity except the Customer’s own employees. Without limiting the foregoing, during the Evaluation Period, Customer shall not disclose, provide, show or otherwise demonstrate the Product to any other manufacturer or seller of robotic devices or to entities with the intent to infringe or harm Rover. During the Evaluation Period, Customer will not (1) modify, disassemble, de-compile or reverse engineer the Product or any portion thereof; (2) transfer, or distribute the Product to any third party or internally to any employee, consultant or contractor of Customer who is not directly involved in the testing or evaluation of the Product; (3) publicly disclose any testing results related to the Product without Rover’s written consent; or (4) remove any product identification or notices of any proprietary or copyright restrictions from the Product or any related materials. During the Evaluation Period, no ownership, rights (limited or implied) or title in or to the Product is transferred to Customer.
Title to Equipment. Title to all Equipment sold by Rover to Customer shall pass from Rover to Customer upon the later to occur of (a) delivery of Product by Rover to the carrier for shipment to Customer or (b) the end of the Evaluation Period if the Product is not returned to Rover within 7 days following the end of the Evaluation Period.
Feedback. All (a) suggestions for correction, change or modification to the Product, (b) evaluation data, (c) evaluations, (d) benchmark tests, and (e) other feedback, information and reports provided to Rover hereunder (collectively, “Feedback”), will be the property of Rover. Customer hereby assigns to Rover any invention, work of authorship, idea, or knowhow (whether or not patentable) that is conceived, learned or reduced to practice in the course of performance under this Agreement in respect of the Product, including but not limited to all Feedback and any patent rights, copyrights, trade secret rights, and all other rights with respect thereto. Customer agrees to assist Rover, at Rover’s request and expense, in obtaining intellectual property protection for the foregoing and to confirm such ownership.
Maintenance. Customer may obtain maintenance and support services for the Products by contacting Rover customer support.
Software License. Subject to the terms and conditions of this Agreement and compliance therewith, Rover grants Customer a nonexclusive, nontransferable, nonsublicensable license to use Software only in conjunction with Customer's use of the Products and only in and as part of the Equipment delivered to Customer as part of the Product. Customer may not (and may not permit any third party to): (i) modify, incorporate or use in any other works, translate, reverse engineer (except to the limited extent applicable statutory law expressly prohibits reverse engineering restrictions), decompile, disassemble, otherwise attempt to derive source code from or create derivative works based on the Software; (ii) make unauthorized copies of the Software; distribute or market the Software; (iii) remove any proprietary notices, labels or marks on or in any copy of the Software; (iv) use the Software other than as part of the Product in which the Software has been incorporated or for which it has been delivered; or (v) perform benchmark tests without the prior written consent of Rover, and any results of such permitted benchmark testing shall be Confidential Information (as defined below) of Rover and may not be disclosed without Rover's prior written consent. Software is licensed and not sold. Except for this license, Rover and its licensors shall retain all rights, title, and interest in and to the Software and all copies thereof.
Limited Warranty. It is the sole and exclusive responsibility of Customer to determine the suitability of any and all Products of Rover for Customer's intended purposes and uses. Except as set forth in these Terms, Rover warrants, for a period of 1 year from the date of receipt by Customer, that the Product is free from material defects in materials and workmanship and substantially conforms to Rover’s applicable specifications (subject to Rover’s standard tolerances for variations) as in effect at the time of shipment by Rover, provided, further, that notwithstanding anything to the contrary contained herein, such warranty does not cover any robot batteries, robot battery chargers delivered to Customer. Liability of Rover in connection with the sale of Products shall be limited, and, at the sole option of Rover, either refund the purchase price, replace or repair any Products or defective elements (a) with respect to which Customer notifies Rover of Customer’s claim of any alleged defect or nonconformity hereunder promptly after delivery, (b) which is returned to Rover promptly upon request and returned to Rover promptly upon request and (c) which is determined by Rover to be defective or nonconforming. All claims for warranty service must be brought to Rover’s attention within the warranty period and within 30 days after Customer first becomes aware of Product’s failure to perform. Service after the warranty period shall be provided only pursuant to a duly executed Rover Repair Estimate and corresponding customer purchase order.
Warranty Exclusions & Limitations. The Limited Warranty set forth above shall not apply where: (i) a Product has been altered or modified from its original state by any party other than Rover; (ii) there is negligence or misuse of the Product by Customer or its designated representatives; (iii) the Product is combined with other products not supplied by Rover; or (iv) the Product was shot by bullets, other ammunition or explosive devices, or run over by a motor vehicle. Rover’s warranty excludes damage or defects resulting from transportation to the Customer’s facility, improper or inadequate maintenance by Customer, unauthorized modification, misuse, or operation of the Products outside of the environmental specifications.
Return Process. Products shall be non-returnable except as set forth in the Limited Warranty or as otherwise expressly provided in this Agreement. Prior to return, Customer shall contact Rover customer support and describe the issue. Customer shall include a statement with the returned Product that explains the basis and reason for return. Customer shall prepay the shipping costs for all returns. If a returned Product is replaced, Rover will pay the shipping costs to ship the replacement Product to Customer’s designated location only if such location is in the contiguous United States (which for the avoidance of doubt shall exclude Alaska and Hawaii, and all offshore U.S. territories and possessions), and if such location is not in the contiguous United States customer shall pay for such shipping costs. Any returned Product that is not defective shall be returned to Customer, and Customer shall pay for all shipping costs. Any repair or replacement hereunder shall not extend the warranty period for the applicable Product.
Warranty Disclaimer. THE LIMITED WARRANTY SET FORTH HEREIN IS SOLE AND EXCLUSIVE. ROVER GIVES AND MAKES NO REPRESENTATION OF WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS OR SERVICES, OTHER THAN THAT EXPRESSLY SET FORTH HEREIN. NO REPRESENTATIVE OF ROVER IS AUTHORIZED TO GIVE OR MAKE ANY OTHER REPRESENTATION OR WARRANTY OR MODIFY THIS WARRANTY IN ANY WAY EXCEPT IN A WRITTEN AMENDMENT OF THESE TERMS SIGNED BY A DULY AUTHORIZED REPRESENTATIVE OF ROVER THAT MAKES SPECIFIC REFERENCE TO THESE TERMS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ROVER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, AS WELL AS ALL WARRANTIES ARISING OUT OF USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
Compliance with Laws. Customer acknowledges and agrees that it shall use all Products in compliance with all applicable laws, statutes, rules, regulations, orders and restrictions, and that it will not resell or otherwise transfer or convey any Products to any third party without the prior express written consent of Rover.
Infringement Indemnification. Except as provided below, Rover shall defend and indemnify Customer from and against any damages, liabilities, costs and expenses (including reasonable attorneys' fees) arising out of any claim that the Product, as delivered, infringes a valid United States patent or copyright or misappropriates a trade secret of a third party, provided that (a) Customer shall have promptly provided Rover written notice thereof and reasonable cooperation, information, and assistance in connection therewith, and (b) Rover shall have sole control and authority with respect to the defense, settlement, or compromise thereof. If any such Product becomes or, in Rover’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Rover may, at its option, (i) procure for Customer the right to continue using such Product, (ii) replace or modify such Product so that it becomes non-infringing without substantially compromising its functionality, or, if (i) and (ii) are not reasonably available to Rover, then (iii) require Customer to return to Rover the allegedly infringing Product and pay to Customer an amount not to exceed the depreciated value of the Product for which Customer has paid, depreciated on a straight line basis over a 3 year period. Rover shall have no liability or obligation to Customer hereunder with respect to any patent, copyright or trade secret infringement claim based upon (1) modifications, alterations, combinations or enhancements of the Product not created by Rover; or (2) any patent, copyright or trade secret in which Customer has an interest. The foregoing states the entire liability of Rover with respect to infringement of patents, copyrights and trade secrets by the Product or any part thereof or by their operation.
Limitation on Liability. Customer acknowledges that no guarantees or assurances have been made as to the results that may be obtained from the use of the Products whether used singly or in combination with other items. Customer acknowledges that it does not rely on, and waives any claim relating to, any recommendation or instruction given to Customer by Rover or any of its representatives regarding the specifications, storage, handling or use of Products purchased and sold hereunder, which recommendation or instruction shall be followed or acted upon by Customer entirely at Customer’s own risk. ROVER’S LIABILITY, AND CUSTOMER’S EXCLUSIVE REMEDY IN CONNECTION WITH THE SALE OR USE OF PRODUCTS SOLD HEREUNDER, REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, SHALL BE STRICTLY LIMITED TO ROVER’S OBLIGATIONS AS SPECIFICALLY AND EXPRESSLY PROVIDED HEREIN. IN NO EVENT SHALL ROVER HAVE ANY LIABILITY TO CUSTOMER, ARISING OUT OF OR IN CONNECTION WITH THE SALE OR USE OF THE PRODUCTS SOLD HEREUNDER OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN AN AMOUNT IN EXCESS OF, AND ROVER’S LIABILITY SHALL BE STRICTLY LIMITED TO, AMOUNT(S) ACTUALLY RECEIVED BY ROVER FROM CUSTOMER FOR THE PRODUCTS WHICH GIVE RISE TO ROVER’S LIABILITY. IN NO EVENT SHALL ROVER HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING IN ANY WAY IN CONNECTION WITH THE PRODUCTS OR THEIR SALE OR USE, INCLUDING BUT NOT LIMITED TO DAMAGE TO PROPERTY, INJURY TO PERSONS, LOSS OF USE, DATA OR PROFITS, OR DELAYS OR INCONVENIENCE, EVEN IF ROVER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Confidentiality. The term “Confidential Information” means all trade secrets, know-how, inventions, developments, software and other, business or technical information disclosed by or for Rover, but not including any information Customer can demonstrate is (a) rightfully furnished to it without restriction by a third party without breach of any obligation of confidentiality, (b) generally available to the public without breach of these Terms or (c) independently developed by it without reliance on such information. All Software and pricing information provided by Rover is deemed to be Confidential Information. Except for the specific rights granted by this Agreement, Customer shall not use or disclose any of Rover’s Confidential Information without its written consent, and shall use reasonable care to protect it. Customer shall be responsible for any breach of confidentiality by its employees and contractors. Any breach or threatened breach will cause irreparable harm to Rover for which money damages would not be an adequate remedy. Rover shall, in addition to any other legal or equitable remedies, be entitled to an injunction or similar equitable relief against any such breach or threatened breach without the necessity of posting any bond.
Export Control. Customer shall comply with the U.S. Foreign Corrupt Practices Act (regarding, among other things, payments to government officials) and all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and not export, or allow the export or re-export of any Product in violation of any such restrictions, laws or regulations.
Restricted Rights. If Products are being acquired by the U.S. Government, any Software and related documentation is commercial computer software and commercial computer software documentation developed exclusively at private expense, and (i) if acquired by or on behalf of a civilian agency, shall be subject to the terms of the computer software license herein as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (ii) if acquired by or on behalf of units of the Department of Defense ("DoD") shall be subject to the terms of the commercial computer software license herein as specified in 48 C.F.R. 227.7202, DoD FAR Supplement and its successors.
Miscellaneous. Notices. All communications under these Terms shall be in writing or by confirmed fax, and shall be deemed to have been duly given upon receipt if sent to the address or fax number set forth on the Quote/Invoice or such other address or fax number as either party may specify. All notices hereunder shall be in English. Severability. In the event that any provision of these Terms shall, in whole or in part, be determined to be invalid, unenforceable or void for any reason, such determination shall affect only the portion of such provision determined to be invalid, unenforceable or void, and shall not affect in any way the remainder of such provision or any other provision of these Terms. The parties agree that they will negotiate in good faith or will permit a court or arbitrator to replace any provision of these Terms so held invalid, unenforceable or void with a valid provision that is as similar as possible in substance to the invalid, unenforceable or void provision.
Waiver. The waiver by Rover of a breach or a default of any provision of these Terms by Customer shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of Rover to exercise or avail itself of any right, power or privilege hereunder, operate as a waiver of any right, power or privilege by Rover.
Governing Law. These Terms and the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the State of California without taking into account its principles on conflicts of law. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms.
Jurisdiction & Venue. Exclusive jurisdiction and venue for any litigation arising under these Terms is in the federal and state courts located in San Francisco, CA, U.S.A. and both parties hereby consent to such jurisdiction and venue for this purpose. Attorneys’ Fees. In any such action, suit or proceeding, the successful or prevailing party shall be entitled to recover its reasonable attorneys' fees and other costs incurred in connection with that action, suit or proceeding, in addition to any other relief to which such party may be entitled.
Relationship of the Parties. Nothing contained in these Terms shall be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
Force Majeure. In no event shall Rover have any liability to Customer for any delayed performance or nonperformance by Rover which results, in whole or in part, directly or indirectly, from any cause beyond the reasonable control of Rover. Such causes shall include (but shall not be limited to) acts of God, wars, riots, civil disturbances, strikes, labor disputes, fires, storms, floods, earthquakes, natural disasters, inability to obtain or use raw or component materials or parts, labor, equipment, facilities, or transportation, and acts of any government or agency thereof. Customer's order will be deemed suspended for so long as any such cause prevents or delays Rover’s performance. In the event of any such suspension, Rover shall have the right, at its option, upon notice to Customer, (a) to terminate its obligation to sell any or all of the Products ordered hereunder or (b) to resume performance as soon as practicable after the suspension, and reschedule delivery of the Products ordered hereunder to one or more deferred dates to be mutually agreed upon by Customer and Rover, subject to Customer's payment of an additional charge for any increase in Rover’s direct or indirect costs occasioned by the suspension of its performance.
Entire Agreement. These Terms (a) constitute the entire agreement of the parties hereto with respect to the subject matter hereof and supersede all prior understandings and agreements, whether written or oral, as to such subject matter; (b) may be amended or modified only by a writing executed by an authorized officer of the party against whom enforcement is sought; (c) may not be assigned by Customer without the written consent of Rover; and (d) shall be binding upon and shall inure to the benefit of the respective successors and permitted assigns of the parties hereto.
Open Avatar Inc., DBA Rover Robotics
294 Grove Ln E. Suite 200
Wayzata, MN 55391