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FOUR GROWERS, INC.  TERMS AND CONDITIONS OF SALE

  1. ACCEPTANCE.

These Terms and Conditions of Sale (“Terms and Conditions”) shall apply to the purchase of all products (“Products”) purchased by buyer (“Buyer”) from Four Growers, Inc. (“Seller”).  The Products may be purchased pursuant to an executed Purchase Agreement between Buyer and Seller (“Purchase Agreement”).  In the event of any conflict between the Purchase Agreement and these Terms and Conditions, the following order of priority shall apply: (i) the Purchase Agreement; and (ii) these Terms and Conditions.  If this writing or any Purchase Agreement differs in any way from the terms and conditions of Buyer’s purchase order or if this writing is construed as an acceptance or as a confirmation acting as an acceptance, Seller’s acceptance is EXPRESSLY MADE CONDITIONAL ON BUYER’S ASSENT TO THE PROVISIONS OF ANY EXECUTED PURCHASE AGREEMENT AND ANY TERMS AND CONDITIONS CONTAINED HEREIN THAT ARE DIFFERENT FROM OR ADDITIONAL TO THOSE CONTAINED IN BUYER’S PURCHASE ORDER.  Further, this writing shall be deemed notice of objection to such terms and conditions of Buyer.  If this writing is construed as an offer, acceptance hereof is EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS CONTAINED HEREIN AND ANY EXECUTED PURCHASE AGREEMENT BETWEEN THE PARTIES.  In any event, Buyer’s acceptance of the Products shall manifest Buyer’s assent to these Terms and Conditions.  No addition to or modification of these provisions will be effective unless set forth in writing and agreed to by Seller.

2. TERMS OF PAYMENT; PRICING.

  1. Invoices will be sent upon shipment of Products and are due on receipt and payable in full within thirty (30) days from date of invoice.  Seller may charge interest on any outstanding balance unpaid after thirty (30) days from the date of invoice at the rate of 1.5% per month or the highest rate permitted by law, whichever is lower, until such outstanding balance is paid.  Seller may, in its sole discretion, suspend the delivery of any Products if any invoices are past due.  
  2. Buyer hereby grants to Seller a security interest in all Products and in all proceeds thereof, until the complete purchase price and all additional costs and charges are paid by Buyer.  At the request of Seller, Buyer hereby agrees to execute such documents reasonably required to perfect Seller’s security interest in the Products.
  3. All insurance and shipping charges are the responsibility of Buyer.  Prices quoted by Seller are exclusive of all city, state or federal taxes.  Buyer shall be responsible for paying all taxes applicable with respect to the transactions contemplated by this Agreement, except taxes based on Seller’s net income.
  4. Title to and risk of loss of the Products herein described shall pass to Buyer upon delivery of said Products to Buyer’s facility.

3. SOFTWARE.

  1. Upon delivery of the Products, Seller grants to Buyer a non-transferable, non-exclusive license to use the software provided by Seller (“Software”) in compliance with the restrictions set forth herein.  Buyer agrees: (i) to use the Software only as part of the hardware which is part of the Products; (ii) not to reproduce, modify or attempt to modify the Software; and (iii) not to attempt to decompile or reverse engineer the Software in any respect.  Notwithstanding the above, Buyer may transfer the license to the Software to a purchaser of the Product but only if  the purchaser agrees in writing to comply with all terms and conditions applicable to the use of the Software. 
  2. Buyer hereby acknowledges and agrees that Seller shall have sole and exclusive ownership of any software programs, configurations, content, logs, files, folders, text documents, images, audio clips and information collected by, generated by, processed or stored within the Products (collectively referred to as “Robot Data”).  Nothing herein or in the parties’ dealings arising or related to this Agreement will restrict Seller’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback (as defined below) or Robot Data without compensating or crediting Buyer; provided that Seller shall anonymize the source of the Robot Data such that Buyer cannot be identified as the source.  Seller shall have sole and exclusive ownership of all feedback and evaluation from Buyer related to the Products and all intellectual property rights associated therewith (collectively “Feedback”).  Buyer hereby assigns all right, title and interest in and to any such Feedback to Seller. 

4. FORCE MAJEURE.

Seller shall not be liable for any loss or damage of any nature whatsoever incurred or suffered as a result of any failures or delays in performance due to any cause or circumstance beyond its control, including but not limited to acts of God, pandemics, epidemics, compliance with the laws or with the orders or policies of any government authority, delays in transit or delivery.

5. SOLE AND EXCLUSIVE WARRANTY.

  1. Seller warrants that the Products will be free from defects in material and workmanship for a period of one (1) year (“Warranty Period”) after shipment.  This warranty does not cover any Products which:  (i) have been misused or modified by a party other than Seller; (ii) have not been properly installed; (iii) have been subject to unusual stress; (iv) have not been properly maintained; or (v) have a defect that has not been reported to Seller during the Warranty Period.  In the event of breach of the warranty, Buyer’s sole and exclusive remedy, and Seller’s sole and exclusive obligation shall be, at Seller’s option, the repair or replacement of the defective Products.
  2. Seller warrants that any services provided by Seller, including but not limited to maintenance and installation services, will be provided in a professional manner.  In the event of any breach of the warranty for services, Seller’s sole and exclusive obligation and Buyer’s sole and exclusive remedy shall be the reperformance of the applicable services without charge. 
  3. THE WARRANTIES SPECIFIED ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES TO BUYER FOR THE PRODUCTS AND SERVICES AND IS IN LIEU OF ANY OTHER WARRANTY WHETHER ORAL, WRITTEN, EXPRESS, OR IMPLIED INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.

6. LIMITATION OF LIABILITY.

  1. In no event shall Seller be liable for any special, indirect, consequential, incidental, or punitive damages, whether arising under contract, warranty, tort, negligence, strict liability or any other theory of liability, including but not limited to loss of profits, loss of use of the Products, or loss of goodwill.
  2. Notwithstanding whether any remedy fails of its essential purpose or otherwise, in no event shall Seller’s liability for any Products or services supplied hereunder exceed the purchase price paid by Buyer to Seller for the applicable Products or services, regardless of whether the claim is based on contract, tort, warranty or any other theory of liability.

7. TERMINATION.

Seller may terminate any Purchase Agreement immediately by written notice to Buyer without liability or further obligation hereunder if Buyer breaches any provision, term or condition of the Purchase Agreement between Buyer and Seller and Buyer shall be liable for all damages, losses and liability that Seller incurs directly or indirectly resulting from Buyer’s breach, including, without limitation, attorney’s fees.

8. GENERAL.

Any Purchase Agreement and these Terms and Conditions may not be assigned by Buyer without the prior written consent of the Seller. Seller may assign the Purchase Agreement, and these Terms and Conditions, in whole or in part, to a successor by merger, or in connection with a merger of Seller, to an acquirer of, or in connection with, the transfer of all of substantially of Seller’s assets, or to any affiliate of Seller.  This Agreement shall be governed by the substantive laws of the Commonwealth of Pennsylvania without regard to its conflict of laws principles.  The terms of the U.N. Convention on Contracts for the International Sale of Goods shall not apply. All disputes arising under this Agreement or under any order submitted for Products shall be resolved in a court of competent jurisdiction in Allegheny County, Pennsylvania unless Four Growers, in its sole discretion, brings an action against Partner in another jurisdiction. Failure of either party to enforce any of the terms, conditions and limitations contained in these Terms and Conditions shall not be construed as a waiver thereof or a waiver of any other terms, conditions or limitations herein.