BotFactory

Squink General Terms and Conditions

BY PURCHASING OR USING THE GOODS, YOU HEREBY AGREE, ON YOUR BEHALF AND ON BEHALF OF YOUR REPRESENTATIVES, TO THESE GENERAL TERMS AND CONDITIONS.

  1. Applicability . These terms and conditions of sale govern the purchase of Squink: The Desktop Circuit Factory, and all related and attached components thereto (including, without limitation, cartridge heads, ink, glue) and incorporated therein (including, without limitation, software related to the functioning of Squink) (the “ Goods ”) from BotFactory, Inc., a Delaware corporation (the “ Seller ”) to you (together with your employees, officers, directors, agents and permitted assigns, the “ Buyer ”) in accordance with and subject to these terms and conditions (the “ Terms ”; together with the terms and conditions on the the purchase order, if any, the “ Agreement ”). This Agreement comprises the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.

    1. These Terms apply to any repaired or replacement Goods provided by Seller hereunder.

  2. Delivery .

    1. The goods will be delivered within a reasonable time after the receipt of Buyer’s order, subject to availability of finished Goods.

    2. Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to Buyer’s address listed on the face of the purchase order or otherwise provided to Seller by Buyer (the “ Delivery Point ”) using Seller’s standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods within 24 hours of Seller’s written notice that the Goods have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.

    3. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall have paid for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.

    4. If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

  3. Shipping Terms . Delivery shall be made DAP Delivery Point.

  4. Title and Risk of Loss . Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point.

  5. Amendment and Modification . These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.

  6. Inspection and Rejection of Nonconforming Goods .

    1. Buyer shall inspect the Goods upon receipt (“ Inspection Period ”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “ Nonconforming Goods ” means only that the Goods do not function in accordance with Seller’s published specifications in effect as of the date of shipment of the Goods.

    2. If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods, or any nonconforming component thereof, with conforming Goods or conforming components, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods, or nonconforming component thereof, to Seller’s facility located at 45-50 - 30 th Street, Floor 7, Studio 40, Long Island City, New York 11101. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, the replaced Goods DAP Delivery Point.

    3. BUYER ACKNOWLEDGES AND AGREES THAT THE REMEDIES SET FORTH IN SECTION b ARE BUYER’S EXCLUSIVE REMEDIES FOR NONCONFORMING GOODS. EXCEPT AS PROVIDED UNDER SECTION b, ALL SALES OF GOODS TO BUYER ARE MADE ON A ONE-WAY BASIS AND BUYER HAS NO RIGHT TO RETURN GOODS PURCHASED UNDER THIS AGREEMENT TO SELLER.

  7. Price .

    1. Unless otherwise agreed by the parties in the applicable order, Buyer shall have purchased the Goods, and any subsequent Goods, from Seller at the price (the “ Price ”) set forth in Seller’s published price list in force as of the date that Seller accepts Buyer’s purchase order.

    2. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer, including, without limitation, costs associated with clearing customs to import the goods into the country of destination. Buyer shall be responsible for all such charges, costs and taxes; provided , that , Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.

  8. Limited Warranty .

    1. Seller warrants to Buyer that for a period of six months from the date of shipment of the Goods (“ Warranty Period ”), that such Goods will materially conform to Seller’s published specifications in effect as of the date of shipment of the Goods.

    2. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 8(A), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (I) WARRANTY OF MERCHANTABILITY; (II) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (III) WARRANTY OF TITLE; OR (IV) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

    3. Products manufactured by a third party (“ Third Party Product ”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section a. For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (I) WARRANTY OF MERCHANTABILITY; (II) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (III) WARRANTY OF TITLE; OR (IV) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

    4. The Seller shall not be liable for a breach of the warranty set forth in Section a unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within 15 days of the time when Buyer discovers or ought to have discovered the defect within the Warranty Period; (ii) Buyer complies with the procedures set forth in Section 6(b); and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective.

    5. The Seller shall not be liable for a breach of the warranty set forth in Section a if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.

    6. Subject to Section 8(d) and Section 8(e) above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller. If Seller arranges for repair of any such Goods, or components or parts thereof, Buyer shall be responsible to pay all costs of shipment to and from Seller's factory.

    7. THE REMEDIES SET FORTH IN SECTION 8(F) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 8(A).

  9. Limitation of Liability .

    1. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

    2. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.

  10. Compliance with Law . Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.

  11. Termination . In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) has not performed or complied with any of these Terms, in whole or in part; or (ii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

  12. Waiver . No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

  13. Confidential Information . All non-public, confidential or proprietary information of Seller disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” including, without limitation, (a) designs and inventions (whether or not patentable), ideas, methods, discoveries, trade secrets, formulas, prototypes, devices, technology, know-how, research and development, processes, compositions and other trade secrets, utility models, pending patent applications, and other confidential intellectual property, whether or not patentable; (b) all specifications, documentation, components, source code, object code, images, icons, algorithms, audiovisual components and objects, schematics, drawings, protocols, processes, and other visual depictions, in whole or in part, of any of the foregoing; (c) any third-party confidential information included with, or incorporated in, any information provided by Seller to the Buyer; (d) any other information that would reasonably be considered non-public, confidential, or proprietary given the nature of the information and the Seller’s business (such as business operations, customer lists, pricing, discounts or rebates); and (e) all notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations, testing results, derivatives, products, and other materials (the “ Derivatives ”) prepared by or for the Buyer that contain, are based on, or otherwise reflect or are derived from, in whole or in part, any of the foregoing, is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Seller on a non-confidential basis from a third party.

  14. Restrictions on Use . Seller owns any and all Confidential Information, including any and all intellectual property rights in and to the Goods, and hereby licenses to you the right to use such intellectual property rights in a manner consistent with this Agreement for your use of the Goods. All rights not granted in this Agreement are reserved to the Seller. Without limiting the generality of the foregoing, Seller shall not, and shall not cause or permit anyone to: (i) copy, duplicate or otherwise reproduce the Goods, in whole or in part; (ii) modify or create derivative works of the Goods; (iii) work around any technical limitations in the Goods; (iv) reverse engineer, disassemble, decompile or otherwise manipulate the Goods, in whole or in part, to obtain the Seller’s trade secrets or source code to any components of the Goods (unless required by law for interoperability); (v) use the Goods, in whole or in part, on a service bureau or timesharing basis or application service provider basis or for the benefit of any third parties; (vi) remove, obscure or alter any patent, copyright, trademark or other proprietary rights notice(s) on the Goods or their components; (vii) except with Seller’s express written consent, use Seller’s trademarks, including without limitation BOTFACTORY in any manner; (viii) use any component of the Goods to design or create any software program, hardware or system or content, in whole or in part, with features or functions similar to the features or functions of any of the Goods; (ix) include any part of the Goods in, or use the Goods for, any programs designed or intended for a high risk use; (x) use the Goods, in whole or in part, for development of, or distribution in, any malicious, deceptive, defamatory, otherwise tortious or unlawful materials. Buyer shall take no action that may compromise Seller’s personal or intellectual property rights, but instead shall take all reasonable actions required to safeguard such rights.

  15. Updates . Buyer understands and agrees that Seller may amend, modify, change, and cease distribution or production of the Goods at any time. Buyer understands that Seller is not obligated to provide Buyer with upgrades, updates, or future versions of the Goods (“ Updates ”) under this Agreement. However, if Seller does provide Buyer with any Updates, Buyer agrees that in all circumstances it shall promptly implement and integrate the Updates upon its receipt of notice of the Update from Seller . All Updates shall be subject to the terms and conditions of this Agreement or such agreement, if any, which accompanies such Updates. Buyer shall routinely update its contact information provided to Seller upon registration in order to be eligible to receive Updates. Buyer hereby agrees and acknowledges that failure to implement and integrate the Updates may cause complete or partial functionality loss with respect to the Goods, and Buyer is entirely responsible for implementing and integrating the Updates. Buyer shall indemnify and hold Seller and its licensors harmless from and against any and all claims, losses, liabilities, damages, settlements, judgments, taxes, penalties, fines, fees, and other expenses (including attorney and expert fees and court costs) arising out of or resulting from loss of functionality due to Buyer’s failure to implement and integrate Updates.

  16. Force Majeure . The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), malicious hacking, terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 45 days, Buyer shall be entitled to give notice in writing to Seller to terminate this Agreement.

  17. Assignment . Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

  18. Relationship of the Parties . The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

  19. No Third-Party Beneficiaries . This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

  20. Governing Law . All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York.

  21. Arbitration . Any disagreement or dispute arising out of or relating to this Agreement, or the breach thereof, which the parties are unable to resolve after good faith negotiations, shall be submitted, except to the extent specifically prohibited by applicable law in Buyer’s jurisdiction, and settled by final and binding arbitration to be conducted in New York, New York, USA in accordance with the Commercial Rules of the American Arbitration Association (“ Rules ”) and shall be heard by one arbitrator appointed in accordance with the Rules and to be mutually agreed to by the parties. If the parties fail to mutually agree upon an arbitrator within 30 days of submitting the dispute to arbitration, the American Arbitration Association shall appoint the arbitrator. The loser shall bear the costs associated with the arbitration proceedings. No dispute between the parties, or involving any person but Buyer, may be joined or combined together, without the prior written consent of Seller. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, any breach of this Agreement could cause Seller irreparable harm and Buyer agrees that Seller has the right to institute legal or equitable proceedings, including proceedings seeking injunctive relief, in a court of law for claims or disputes regarding Buyer’s violation or threatened violation of this Agreement. The parties specifically agree that, in the event that there is a dispute under this Agreement no such dispute shall be resolved by jury trial. THE PARTIES HERETO WAIVE ALL RIGHTS TO A JURY TRIAL FOR ANY DISPUTES ARISING UNDER THIS AGREEMENT, INCLUDING DISPUTES AS TO WHETHER ATTORNEY’S FEES OR OTHER DAMAGES ARE DUE HEREUNDER. Unless, and only to the extent, prohibited by law in Buyer’s jurisdiction, any and all disagreements, disputes, mediation, arbitration or litigation relating to this Agreement shall be conducted in the English language, including without limitation any correspondence, discovery, submissions, filings, pleadings, oral pleadings and arguments, and orders or judgments.

  22. Notices . All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “ Notice ”) shall be in writing and addressed to the parties at such address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only if the party giving the Notice has complied with the requirements of this Section.

  23. Severability . If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

  24. Survival . Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidentiality, Restrictions on Use, Governing Law, Arbitration, and Survival.