Terms And Conditions

Liquid Robotics, Inc. Terms and Conditions of Sale

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The terms and conditions set forth in this agreement (the “Agreement”) apply to the sale by Liquid Robotics®, Inc. (“LRI”) to any customer of any Wave Glider® System(s) (including any spare parts and components or other items listed on any official LRI quote or purchase order acknowledgement (“Customer”). For purposes of this Agreement, the term “Wave Glider System” includes all items listed in any official LRI quote or purchase order acknowledgment.

By placing any order for any Wave Glider System, Customer accepts the terms and conditions set forth in this Agreement. No changes, reschedules, or cancellations of any Wave Glider System ordered nor any modifications to the terms and conditions set forth herein may be made without LRI’s written consent.

1. Terms and Conditions of Sale. Any sale of a Wave Glider System shall be subject to these terms and conditions. This Agreement constitutes the entire agreement between LRI and Customer with respect to the terms and conditions applicable to the Wave Glider System being purchased by Customer, and supersedes all prior communications, whether written or oral, and prior agreements related thereto, and specifically supersedes any Customer purchase order or terms and conditions related to such Customer purchase order. The foregoing notwithstanding, the Wave Glider Management System (“WGMS”) is either: i) a web-based software service made available to Customer through the Internet using a version of WGMS hosted by LRI (“Hosted WGMS”) or ii) a version of WGMS software provided by LRI for installation on Customer’s computer hardware (“Installed WGMS”). The version of WGMS to be provided to Customer shall be specified on the LRI quote provided to Customer, and Customers use of Hosted WGMS or Installed WGMS shall be subject to LRI’s standard license agreements for those software products.

2. Delivery Schedule. LRI will use commercially reasonable efforts to deliver the Wave Glider System on or before the delivery date; specified delivery dates, if applicable, are approximate and not the essence of the contract. If the scheduled delivery of the Wave Glider System is delayed by Customer, Force Majeure (as defined in Section 10.6), or other export/shipping regulations outside of LRI’s commercially reasonable control, LRI may deliver the Wave Glider System by moving it to storage for the account of and at the risk of Customer.

2.1 Any delivery dates and timetables specified by LRI are approximate only. LRI shall not be liable for any loss or expense, whether arising in tort or contract, incurred by Customer if deliveries do not meet any specified approximate delivery schedule.

2.2 Unless specified to the contrary in writing by LRI, title, risk of loss or damage of the Wave Glider System shall pass to Customer Ex Works LRI’s Sunnyvale Facility. LRI will select the method of shipment and the carrier if Customer has not done so (and notified LRI of its selection) at least ten (10) days prior to the scheduled delivery date and shall bill Customer accordingly.

3. Inspection and Acceptance. At Customer’s request, at least ten (10) business days prior to the scheduled shipment date, Customer may inspect the Wave Glider System at LRI’s designated facilities. If Customer elects not to inspect the Wave Glider System prior to shipment to Customer, use of the Wave Glider System by Customer, its agents, employees or licensees, or the failure of Customer to return the Wave Glider System within ten (10) calendar days following Customer’s receipt of such Wave Glider System, shall constitute acceptance by the Customer. Customer understands and agrees that Customer may elect not to accept the Wave Glider System only if such system fails to conform in a material respect to the Sales Order Confirmation.

4. Payment; Taxes. Customer shall pay LRI the price(s) for the Wave Glider System specified in the Sales Order Confirmation. All prices are stated in United States Dollars. The prices for the Wave Glider System do not include shipping, transportation, handling or insurance, or applicable foreign, federal, state and local excise, sales, value-added, use, withholding taxes and customs duties, and other similar charges. Such charges, when applicable, will appear as separate additional items on the invoice. Any amount remaining unpaid thirty (30) days after the date of LRI’s invoice will accrue interest at the rate of 1½% for each month or fraction thereof that such amount is overdue, or the highest interest rate permitted by applicable law. Customer will reimburse LRI for all reasonable costs incurred (including reasonable attorney’s fees and other legal costs) in collecting past due amounts owed by Customer. Payment obligations hereunder are non-cancelable and any sums when paid are non-refundable. The foregoing notwithstanding, for all international orders/shipments, payment prior to shipment or a Letter of Credit acceptable to LRI (to be determined at LRI’s discretion) will be required.

5. Limited Warranty, Disclaimer of Other Warranties, Exclusive Remedy, Limitations.

5.1 Limited Warranties. LRI warrants that the Wave Glider System shipped to Customer under this Agreement will, for 365 calendar days (the “Warranty Period”), (a) conform to and perform in accordance with the functional specifications provided by LRI to Customer as specifically set forth in the Wave Glider User Manual, incorporated herein by reference as though set forth in full herein, under normal use and operation and subject to the limitations and Excluded Failures set forth in Section 5.4 herein; and (b) be free from defects in materials and workmanship in all material respects.

5.2 Disclaimer: THE FOREGOING LIMITED WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF QUALITY AND PERFORMANCE, WRITTEN, ORAL OR IMPLIED, AND ALL OTHER WARRANTIES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM COURSE OF DEALING OR USAGE OF TRADE ARE HEREBY DISCLAIMED BY LRI.

5.3 Exclusive Remedy. If the Wave Glider System fails to conform to the limited warranty during the Warranty Period set forth in Section 5.1, Customer’s sole and exclusive remedy shall be the repair or replacement (at the sole discretion of LRI) of the affected part or portion of the Wave Glider System at LRI’s expense. Customer agrees to promptly notify LRI customer support, as described in the Wave Glider User Manual, by telephone and email, of the nature of any alleged failure or defect, and cooperate with LRI customer support to determine if the affected part or portion of the Wave Glider System can be repaired or replaced at Customer’s location by Customer personnel. If authorized by LRI (by obtaining a “return authorization number” from LRI) Customer agrees to promptly return the affected part or portion or the Wave Glider System (as directed by LRI customer support) to the location designated by LRI. LRI will examine the affected part or portion of the Wave Glider System at the designated location to determine to LRI’s satisfaction whether the alleged failure or defect actually exists or was caused by one or more of the failures or defects set forth in Section 5.1 or limitations described in Section 5.4 herein. LRI shall have a reasonable time to make repairs or replace such affected part or portion of the Wave Glider System that fails to conform to the limited warranty. THIS IS LRI’s ONLY LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY CLAIM OR ACTION, WHETHER ARISING IN TORT OR CONTRACT RELATED TO WARRANTY. Any part or portion or the Wave Glider System repaired or replaced under the limited warranties provided by this Agreement shall be warranted until the termination of the Warranty Period, or, if such replacement or repair occurs within the last 30 calendar days of the Warranty Period, for an additional 90 calendar days from the Termination of the Warranty Period. If Liquid Robotics determines that the Wave Glider System is not defective within the terms of the limited warranty, the Customer will pay LRI all costs of handling, inspection and repair, and no Warranty Period extension hereunder shall be applicable. Customer agrees that replacement parts utilized in warranty services may be new, remanufactured and/or refurbished. All replaced parts or portions of the Wave Glider System shall be the property of LRI, on an exchange basis.

5.4 Limitations. The limited warranties set forth in Section 5.1 herein extend only to Customer and are contingent upon proper use of the Wave Glider System in accordance with the Wave Glider User Manual and all other manuals and documentation supplied to Customer by LRI with the delivery or prior to the delivery of the Wave Glider System. The limited warranties will not apply to any “Excluded Failure” caused by: (a) accident, collision, neglect, abuse, or misuse; (b) use of the Wave Glider System with any equipment or software not furnished by LRI; (c) Customer’s use of the WGMS; (d) any payload added by Customer, (e) alteration or repair of the Wave Glider System by anyone other than LRI (including, but not limited to, integration of sensor or other payloads), (f) Iridium, Internet, or other communications network failures or disruptions; or global positioning system, or other localization system failures or disruptions, (g) damage to the Wave Glider caused by biofouling or other normal wear and tear caused by exposure to marine conditions and weather, or (e) Acts of God (the “Excluded Failures”). LRI WILL HAVE NO LIABILITY FOR ANY LOSS OR DAMAGE RELATING TO THE EXCLUDED FAILURES SET FORTH IN THIS SECTION..

6. Indemnity. Customer will, at its expense, indemnify, defend and hold LRI harmless of and from any third-party claim, suit or action (including but not limited to those brought by governments and public entities) against LRI to the extent such claim, suit or action arises out of a claim of personal injury, property damage, territorial or resource infringement or violation, or alleged economic loss arising from (a) Customer’s negligence or willful misconduct in the use, maintainance, or operation of the Wave Glider System ; (b) Customer’s use or operation of the Wave Glider System in a manner not contemplated or permitted by the Wave Glider User Manual; (c) one or more of the Excluded Failures defined in Secton 5.4 under Limitations; or (d) Customer’s violation of any applicable statute, law, treaty, rule or regulation, whether domestic or foreign (the “Indemnified Claims”). In no event shall Customer be required to indemnify LRI for LRI’s own gross negligence or willful misconduct. LRI shall have a right of approval of legal counsel selected by Customer to provide LRI with the defense of Indemnified Claims contemplated by this Section 6. Each Party will be responsible for its own payment of any costs, damages, fines, penalties and fees finally awarded to such third-party directly against such Party in any suit or action, or any settlements agreed to by such Party unless such settlement includes the other Party, in which case the settlement agreement shall control the apportionment of any costs, damages, fines, penalties, and fees.,

7. LIMITATION OF LIABILITY. LRI’s TOTAL LIABILITY RELATED TO THE WAVE GLIDER SYSTEM, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, IN TORT INCLUDING NEGLIGENCE, OR OTHERWISE, SHALL BE LIMITED TO THE ACTUAL DOLLAR AMOUNT LRI RECEIVED FROM CUSTOMER FOR SUCH WAVE GLIDER SYSTEM.

IN NO EVENT WILL LRI OR ITS SUPPLIERS BE LIABLE TO THE CUSTOMER FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER OR ANY CONSEQUENTIAL, INDIRECT, PUNITIVE INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, OR ANY LOST PROFITS OR PROSPECTIVE PROFITS OR LOST SAVINGS, OR ANTICIPATED SALES OR GOODWILL OR COST OF SUBSTITUTE PRODUCTS OR SERVICES EVEN IF A LRI REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. THESE LIMITATIONS OF LIABILITY APPLY EVEN IF THE EXCLUSIVE REMEDY SET FORTH IN SECTION 5.3 HEREIN FAILS ITS ESSENTIAL PURPOSE.

8. Compliance with Laws. Customer will comply with all applicable statutes, laws, rules and regulations relating to Customer’s use or operation of the Wave Glider System, whether domestic or foreign. In addition, LRI will not be responsible or liable for any delays in performance of any obligation under this agreement due to Customer’s failure to comply with any applicable statutes, laws, rules, and regulations (including, but not limited to, any applicable shipping/export regulations). In addition, upon LRI’s request, Customer shall provide LRI with end user certifications or other documentation related to compliance with shipping/export regulations.

9. Ownership. LRI owns and has all industrial and intellectual property rights, including copyright, utility patent, design patent, and trade mark, to the Wave Glider System that is the subject of this Agreement to the best of its knowledge. Nothing in this Agreement shall be deemed to convey any intellectual property right to Customer, and Customer agrees not to exercise or claim any intellectual property right with respect to the Wave Glider System.

10. Miscellaneous.

10.2 Notice. Any notice, consent, or authorization hereunder will be in writing and will be given in any of the following methods: personally, by facsimile and email with confirmation of receipt, or by overnight courier to a Party at its respective address first set forth above, or any such other address as may be designated by written notice of such Party as provided under this Section. Notices will be deemed given when first received by any method.

10.3 Choice of Law and Forum, Limitation of Actions. This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding its conflict of laws principles. The exclusive venue for any legal proceeding related to this Agreement shall be San Francisco, California. NO ACTION RELATING TO THE WAVE GLIDER SYSTEM, REGARDLESS OF ITS FORM, MAY BE BROUGHT BY CUSTOMER AGAINST LRI OR ITS SUPPLIERS MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED. THE TIME FOR SUIT UNDER THIS AGREEMENT SHALL BE TOLLED DURING ANY MEDIATION CONDUCTED UNDER SECTION 11 OF THIS AGREEMENT.

10.4 Severability. Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, if possible, that part will be amended to achieve as nearly as possible the same economic effect as the original provision and, if not possible, that part will be severed, and the remainder of this Agreement will remain in full force and effect.

10.5 Amendment; Waiver. This Agreement may be amended or modified only by a writing that is signed by duly authorized representatives of the Parties. No term or provision of this Agreement will be considered waived by either Party, and no breach excused by either Party, unless such waiver or consent is in writing signed by an authorized representative of the Party against whom the waiver is asserted. The failure of either Party to enforce any rights granted under this Agreement or to take action against the other Party in the event of any breach under this Agreement will not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.

10.6 Force Majeure. LRI will not be liable for any failure or delay in performance under this Agreement which failure or delay is the result of any Act of God; act of war; perils of the seas; act of public enemies, pirates or assailing thieves; arrest or restraint of princes, rulers or people; or seizure under legal process; strike or lockout or stoppage or restraint of labor from whatever cause, either partial or general; or riot or civil commotion; fire, flood, unavailability of parts or materials from suppliers; Iridium, internet, or other communications network failures or disruptions; or global positioning system, or other localization system failures or disruptions; or any other contingency, delay, failure, or cause beyond the commercially reasonable control of LRI (collectively, a “Force Majeure” event). If LRI claims a Force Majeure event pursuant to this Section, LRI shall provide prompt written notice of such event and its expected duration to the Customer. If the Force Majeure event lasts longer than thirty (30) days, the other Customer may terminate this Agreement immediately upon written notice to LRI.

10.7 Relationship of the Parties. The Parties to this Agreement are commercial entities. Customer is purchasing the Wave Glider System for its own use and not for resale. Any resale is specifically prohibited without the prior express written consent of LRI and the subsequent purchaser’s prior agreement in writing to be bound by the terms and conditions of this Agreement. LRI shall in no event be required to provide any services to any third party purchaser that has not entered into a separate Agreement with LRI for such services. No Party has the authority to bind or commit the other Party in any way, or to incur any obligation on the other Party’s behalf.

10.8 Assignment. Customer may not assign this Agreement without LRI’s express prior written consent. LRI may assign its rights or delegate its duties in the event of the sale, transfer, merger, or acquisition of all or substantially all of its business, voting stock or assets or to facilitate accounts receivable financing in the ordinary course of business. Any purported assignment in violation of this Section 10.8 will be void or voidable, at LRI’s exclusive discretion and option. This Agreement will inure to the benefit of the Parties’ respective permitted successors and assigns.

10.9 English Language. This Agreement is in the English language only, which language will be controlling in all respects.

10.10 Headings and Signatures. The headings included in this Agreement are for the convenience of the Parties only and shall not affect the construction or interpretation of this Agreement. This Agreement may be executed by the Parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same document.

11. Dispute Resolution. In the event that any controversy or claim arises out of or is related to this Agreement, or the breach thereof (a “Dispute”), the Parties shall engage in good faith mediation with a third-party neutral mediator selected by mutual agreement of the Parties or if such mutual agreement cannot be reached within 15 days from the date on which a Party gives notice to the other Party of such a Dispute and request for mediation thereof, the neutral mediator shall be appointed by a Court of competent jurisdiction within the exclusive venue provided by this Agreement. The mediation shall take place within 30 days from the appointment of the mediator under the procedures provided herein, shall be conducted in accordance with the procedures established by the appointed mediator. A senior officer of each Party, each with authority to settle the Dispute, shall participate personally in the mediation and shall be present in person at any meeting with the mediator. Any mediation hereunder shall take place in San Francisco, California. In no event shall either Party hereto file suit or cause a suit to be filed concerning a Dispute unless and until: (a) the mediator determines that continued mediation is futile, despite the good faith efforts of both Parties to settle the Dispute through such mediation, or (b) the Party to whom the notice of Dispute has been sent refuses to participate in such mediation.