Introductory Provisions: “SELLER” shall mean Real Time Automation, Inc. (also “RTA”), and “BUYER” shall mean the person or entity named on the face of a purchase order delivered to RTA or on the invoice sent out by RTA. “GOODS” shall mean all hardware, firmware, software and/or services provided by SELLER to BUYER under a purchase order or other sales document. These terms and conditions (the “Agreement”) govern the sale of GOODS from SELLER to BUYER. Any additional or different terms or conditions proposed by BUYER (including without limitation the terms of any purchase order issued by BUYER) are rejected unless expressly agreed to in writing by SELLER. No contract shall exist except as provided herein. BUYER shall be deemed to have made an unqualified acceptance of the terms and conditions of this Agreement, and it shall become the sole Agreement between the parties on the earliest of the following to occur: (i) SELLER’s receipt of a copy of this Agreement signed by BUYER; (ii) BUYER’s payment of any amounts due under this Agreement; (iii) BUYER’s receipt of the GOODS; or (iv) any other event constituting acceptance under applicable law.
Amendments: The parties agree that no agreement or understanding to modify this Agreement shall be binding upon SELLER unless in writing and signed by SELLER’s authorized representative.
Changes: BUYER may request in writing that SELLER make a change to an order. SELLER will review any such request to change an order and will advise BUYER in writing of the estimated costs to be incurred by SELLER in implementing such change. If BUYER and SELLER agree on any such change and the associated costs, such agreement shall be set forth in writing, signed by both parties and incorporated as an amendment to this Agreement.
Quantity: The specific quantity ordered will be delivered in full. Any greater quantity is subject to BUYER’s rejection and return.
Documentation: Product documentation includes manuals and other product instructions necessary to use the GOODS. Product documentation does not include drawings, specifications, source code, bill-of-materials and other details required to manufacture the product. Product documentation will be made available to BUYER in written or electronic form and delivered via ground transportation or the internet. On recurring and blanket purchases product documentation may only be delivered on the initial shipment.
Customized Hardware and/or Software: With respect to customized orders, BUYER shall provide to SELLER correct and complete technical requirements and detailed specifications in order for SELLER to carry out the design, development and delivery of the GOODS (the “Specifications”). If BUYER fails to provide any such Specifications, SELLER, at its option, may provide any missing Specifications necessary, in SELLER’s sole discretion, to satisfy the primary engineer’s requirements. BUYER shall be solely responsible for all Specifications. SELLER makes no representations or warranties, express or implied, with respect to the Specifications (including missing Specifications provided by SELLER) or the design, product, hardware or software resulting from the Specifications. BUYER AGREES TO INDEMNIFY AND HOLD HARMLESS SELLER FROM AND AGAINST ALL CLAIMS, LIABILITY, DAMAGES, OBLIGATIONS OR EXPENSES ARISING OUT OF OR RELATING TO SELLER’S COMPLIANCE WITH CUSTOMER’S DESIGNS, SPECIFICATIONS OR INSTRUCTIONS (INCLUDING ANY MISSING SPECIFICATIONS PROVIDED BY SELLER). SELLER retains sole ownership of all intellectual property and other rights in the GOODS prepared according to the Specification including without limitation all patent, copyright, trademark, and trade secret rights. BUYER retains ownership in all intellectual property and other rights to any software that BUYER provides to SELLER for integration into GOODS prepared according to the Specification.
Software License. All firmware and software provided by SELLER to BUYER in connection with the GOODS, including any customized software provided by SELLER TO BUYER, is licensed to BUYER subject to the “Software License Agreement” available on SELLER’s website. For clarity, all firmware and software provided by SELLER to BUYER in connection with the GOODS, including any customized software provided by SELLER TO BUYER, shall be treated as “Software” under the Software License Agreement, and ownership of the Software remains with SELLER.
Prices: BUYER’s purchase order will be filled at the price quoted to BUYER and referenced to SELLER’s quote number on the purchase order. Unless otherwise agreed by SELLER in writing, prices are F.O.B. SELLER’S facility. Title to the Goods and risk of loss shall pass to the BUYER upon acceptance of the GOODS for delivery by a transportation company at the SELLER’S facility. Other than agreements under Blanket Purchase Orders nothing herein shall be construed to indicate that product prices are fixed and/or constant. All general or special taxes, duties or penalties or other governmental charges fixed or imposed by any lawful authority upon the production, sale, shipment or delivery of the GOODS shall be added to the price and paid by BUYER.
Invoices: Unless otherwise agreed by SELLER in writing, invoices shall be paid in full by BUYER within thirty (30) days of the date of invoice. Interest shall be paid on past due amounts at the rate of 18% per annum or the highest rate allowed by law, whichever is lower. BUYER shall indemnify SELLER for all collection expenses, including reasonable attorneys’ fees and court costs, incurred by SELLER in collecting any sums owed by BUYER to SELLER. If BUYER does not pay SELLER any amount due under this Agreement or if BUYER defaults in its performance of this Agreement, SELLER may, without liability of SELLER and without prejudice to SELLER’s other lawful remedies and at SELLER’s sole option: (i) declare immediately due and payable all BUYER’s obligations to SELLER or (ii) suspend or discontinue any future orders until BUYER pays all overdue amounts.
Delivery: SELLER will use commercially reasonable efforts to meet the delivery schedule requested by BUYER on the purchase order, however, SELLER does not guaranty any delivery dates. Time for delivery shall not be of the essence. The availabilities of materials at the time of purchase order will impact the specific delivery schedule for a specific part. SELLER will furnish the current delivery schedule to BUYER when the expected delivery date is more than three (3) days different than the requested ship date.
Cancellation: BUYER shall not be permitted to cancel any order without SELLER’S prior written consent. In the event of any cancellation of an order by BUYER, BUYER shall pay to SELLER its reasonable costs and expenses, plus SELLER’s usual rate of profit for similar work. Orders may be designated as non-cancellable and non-refundable.
Returns. For orders up to $5,000, BUYER can return GOODS for a full refund from SELLER if BUYER returns the GOODS to SELLER within thirty (30) days after BUYER receives the GOODS from SELLER. On all orders, Buyer can return GOODS subject to a fifteen percent (15%) restocking fee to SELLER if SELLER returns the GOODS to SELLER within sixty (60) days after BUYER receives the GOODS from SELLER. No returns are permitted more than sixty (60) days after BUYER receives the GOODS from SELLER.
Property of the BUYER: Unless otherwise agreed to in writing, all property including but not limited to tools, equipment and materials furnished or made available to BUYER for evaluation, testing or convenience shall be and remain the property of SELLER. Such property shall be plainly marked or otherwise adequately identified by SELLER as “Property of RTA” and shall be safely stored separately and apart from BUYER’s property. BUYER shall not use such property except for performance of work hereunder or as authorized in writing by SELLER. Such property, while in BUYER possession or control shall be kept in good condition, shall be held at BUYER’s risk and shall be kept insured by BUYER, at its expense, in an amount equal to the replacement cost with loss payable to SELLER. As and when directed by SELLER, BUYER shall disclose the location of such property, prepare it for shipment and ship it to SELLER in as good condition as originally received by BUYER, reasonable wear and tear excepted.
Blanket Purchase Orders: SELLER will accept blanket purchase orders providing that BUYER accepts delivery in no less than four (4) equal installments delivered every three (3) months over a twelve (12) month term from date of purchase order. Alternate blanket purchase order terms are subject to SELLER’S prior written agreement.
Force Majeure: SELLER shall not be liable for failure to deliver or delay in delivering any GOODS, if such failure or delay is the result of any cause beyond the control of SELLER including, but not limited to, fires, floods, Acts of God, pandemics, strikes, casualties, delays in transportation, or total or partial shutdown of SELLER’s plant for any cause, war, riot, explosion, accident, flood, sabotage, lockout, injunctions, compliance with governmental laws, rules, regulations, widespread raw material shortages, orders or action or any other cause beyond the control of SELLER.
Limited Warranty: SELLER warrants to BUYER that the GOODS delivered hereunder will be free from material defects in workmanship and materials for a period of five (5) years from the invoice date for the GOODS (the “Warranty Period”). There is NO WARRANTY in cases of damage in transit, negligence, abuse, abnormal usage, misuse, altered GOODS, failure to follow SELLER’s instructions, or improper storage. SELLER’s sole and exclusive obligation (and buyer’s sole and exclusive remedy) under this warranty and Agreement shall be, upon prompt written notice by BUYER to SELLER during the Warranty Period of any breach, to either, at SELLER’s option, (i) replace without charge, F.O.B. SELLER’s facility, any defective GOODS expressly warranted herein by SELLER against defects and found by SELLER in its sole discretion to be defective and covered by the warranty of this section of the Agreement or (ii) credit BUYER for the purchase price paid for such GOODS. This warranty covers only pre-authorized repair, replacement, or refund of defective GOODS at SELLER’s main facility and does not include the cost of inspection, removal or delivery. During this Warranty Period, and notwithstanding the preceding warranty description of this section, SELLER will replace or repair, in SELLER’s sole discretion, a unit of the Goods that is damaged for the first time by any cause, including without limitation, BUYER’s negligence (the “First Time Damage Replacement”). For the avoidance of doubt, this First Time Damage Replacement does not apply to subsequent damage to the repaired or replaced unit of the Goods.
Limited Liability. Prior to using the GOODS, BUYER shall determine the suitability of the GOODS for the intended use, and BUYER shall assume all risk and liability whatsoever in connection therewith. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, INDIRECT, COMPENSATORY, PUNITIVE, CONSEQUENTIAL, SPECIAL OR OTHER INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SELLER’S AGGREGATE LIABILITY WITH RESPECT TO THIS AGREEMENT AND ANY PURCHASE ORDERS HEREUNDER SHALL BE LIMITED TO THE MONIES PAID BY BUYER TO SELLER FOR THE GOODS PURCHASED PURSUANT TO THIS AGREEMENT. SELLER shall not be liable to BUYER, or to anyone claiming under BUYER, for any other obligations or liabilities, including, but not limited to, obligations or liabilities arising out of breach of contract or warranty, negligence or other tort or any theory of strict liability, with respect to the GOODS or Seller’s acts, omissions, or otherwise, The remedy described in section 14 (Limited Warranty) is BUYER’s exclusive remedy and is in lieu of any other remedy otherwise available at law or by contract.
Disclaimer of Warranties. SELLER AND BUYER AGREE THAT THE WARRANTY IN SECTION 16 IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT TO THE GOODS FURNISHED BY SELLER HEREUNDER (INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE). SELLER HEREBY DISCLAIMS AND EXCLUDES ALL OTHER EXPRESS OR IMPLIED WARRANTIES. Any oral or written description of the GOODS is for the sole purpose of identifying the Goods and shall not be construed as an express warranty.
Confidentiality: BUYER, its employees and/or subsidiaries shall keep confidential and not disclose to third parties all information, drawings or specifications furnished by SELLER or specifically prepared by SELLER in connection with this Agreement or any purchase order, and BUYER shall not use this information or these materials except as permitted in writing by SELLER. The obligation of the foregoing sentence shall not apply to information that BUYER can demonstrate is or becomes publicly available through no breach of BUYER’ obligations under this Agreement. BUYER shall not advertise or disclose to any third party the existence of or any details concerning this Agreement or any purchase order except as may be required to perform BUYER’s obligations hereunder.
Indemnification: BUYER shall indemnify, defend and hold harmless SELLER, its shareholders, directors, officers, employees, agents, successors and assigns from and against all direct and indirect claims, demands, actions, liabilities, judgments, damages, losses, fines, penalties, forfeitures, costs and expenses, including attorneys’ fees and court costs, arising out of, resulting from or relating to (a) the breach of this Agreement by BUYER, or (b) any injury to or destruction of property, or injury to or death of persons caused, or alleged to have been caused, in whole or in part, by any intentional, reckless, negligent or other act (or failure to act) of BUYER or BUYER’s shareholders, directors, officers, employees, representatives, agents, successors or assigns.
Compliance With Laws and Standards: BUYER shall be solely responsible for obtaining all applicable certifications and complying with all applicable federal, state and local laws, orders, rules and regulations with respect to the GOODS.
Governing Law & Choice Of Forum. This Agreement shall be exclusively construed and governed by Wisconsin law (including, when applicable, the Uniform Commercial Code as adopted in the State of Wisconsin and not the United Nations Convention on Contracts for the International Sale of Goods). Any cause of action, claim, suit or demand by BUYER allegedly arising from or related to the terms of this Agreement or the relationship of the parties shall be brought in a federal or state Court having jurisdiction in Waukesha County, Wisconsin. Both parties hereby irrevocably consent to the jurisdiction of these courts having jurisdiction in Waukesha County, Wisconsin. Any action brought by BUYER must be commenced within one (1) year after the delivery of GOODS or completion of services, notwithstanding any statutory period of limitation to the contrary. The provisions of this paragraph shall survive expiration or termination of this Agreement for any reason.