BuyRexroth.com Terms and Conditions
1 DEFINITIONS AND SCOPE
These Terms and Conditions of Sale shall apply to sales of products (“Products”) and services (“Services”) by Colecom Partners, LLC (“BuyRexroth”) operating the website buyrexroth.com (the “Website”)
BuyRexroth LLC is in no way affiliated with any companies or brands referenced. Images may not be copied, printed or otherwise disseminated without express written permission of BuyRexroth LLC.
In these Standard Terms (as defined below), “BRR” means BUYREXROTH LLC and “Customer” means you, the customer to whom BuyRexroth is providing Products or Services (as each such term is defined below) subject to these Standard Terms. BuyRexroth and Customer are collectively referred to herein as the “Parties” and individually, a “Party”. In addition to the terms defined in these Standard Terms, the following terms have the following meanings:
“Affiliate” means an entity that directly or indirectly controls, is controlled by or is under common control with a Party and as used herein, “control”, “controls” or “controlled” means: (a) fifty percent (50%) or more ownership or beneficial interest of income or capital of such entity; (b) ownership of at least fifty percent (50%) of the voting power or voting equity; or (c) the ability to otherwise direct or share management policies of such entity.
“Customer Data” means all data, information or other content and materials (a) transmitted or provided to BuyRexroth or BRR by Customer or a third party on behalf of Customer, or (b) uploaded by or for Customer via the Product and Processed by or for Customer using the Services.
“Documentation” means all BRR user installation guides, data sheets, application notes and instruction manuals published and generally made available by BuyRexroth or BRR to Customer in writing that relate to the performance conditions and limitations, installation requirements, use limitations and maintenance of the Products, Software and/or Services, including all updates, modifications and changes made thereto by BRR from time to time.
“Law” means (a) any and all laws, statutes, regulations, ordinances, or subordinate legislation in force from time to time to which a Party is subject; (b) the common law; (c) any and all court orders, judgments, or decrees that are binding on a Party; and (d) any and all directives, policies, rules, or orders that are binding on a Party and that is made or given by a regulator, or other government or government agency, of, in the case of items (a) - (d) above, any country, or other national, federal, commonwealth, state, provincial, or local jurisdiction.
“Malicious Code” means code, configurations, files, scripts, agents or programs intended to cause undesired effects, harm or damage, including, for example, viruses, worms, time bombs and trojan horses.
“Order” means both an executed Website keystroke purchasing and accepting the Product, price and payment terms shown on the Website and an ordering document issued by Customer to BuyRexroth that specifies the Product or Service and which is confirmed in writing by BuyRexroth in accordance with these Standard Terms.
“Personal Data” means any information relating to (a) any identified or identifiable natural person, and, (b) identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable data privacy Laws), where for each (a) or (b), such data is Customer Data.
“Process”, “Processing”, and “Processed” means any operation or set of operations performed upon Customer Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, erasure or destruction.
“Product(s)” means any physical good or Service provided by BuyRexroth to Customer and identified in the applicable Webpage, Quotation or Purchase Order.
“BRR Product(s)” means any physical good supplied by BRR to BuyRexroth and provided by BuyRexroth to Customer and identified in the applicable Webpage, Quotation or Purchase Order.
“Products, Software and/or Services,” as a phrase, shall refer only to BRR Products, BRR Software and BRR Services.
“Quotation” means both the price and terms of Products and Services provided on the Website and a separate electronic or paper quotation for Products and Services issued to Customer by BuyRexroth, which is subject to these Standard Terms.
“Service(s)” means any chargeable consulting services, repair services, implementation services, configuration services, technical support services, and/or other professional services provided by BuyRexroth or Third Party Providers to Customer and identified in the applicable Quotation, Statement of Work or Purchase Order, which relates to the Products provided by BuyRexroth to Customer, and which are subject to these Standard Terms.
“Specifications” means the design, performance, descriptions, parameters, requirements and other technical specifications of the Product or Services set forth in the Documentation, which specifications may be amended or supplemented by BRR in its sole and reasonable discretion, or other specifications agreed to by the Parties in writing.
“Software” means for a BRR Product the applications, methodologies or programs developed by BRR or licensed to BRR by a Third Party Provider, available in source code, redistributable libraries or object code formats, and via various means of delivery, and all new versions, updates, revisions, improvements and modifications of any of the foregoing, that may be provided by BRR to BuyRexroth and then to Customer and as identified in the applicable Quotation, Statement of Work or Purchase Order. For the sake of clarity, Software may perform specific functions related to accessing, enabling, developing, networking and maintaining BRR Products, Software and/or Services and may include standalone software, firmware and software tools provided by BRR to Customer. Software shall not refer to software provided with a Product that is not a BRR Product.
“Software Updates” means any Software release intended to fix or correct known problems and which may provide new functionality or features.
“Software Upgrades” means any new version of the Software, which may include revisions, improvements and/or modifications.
“Statement of Work” means a document that specifies in writing the Services or work that Customer may purchase under these Standard Terms, and which may include, but is not limited to, any Specifications, description of Services or work, service level agreements and/or acceptance criteria that are applicable to the Services, and which document has been mutually agreed by both Parties in writing.
“Third Party Providers” means any and all licensors, suppliers, service providers and subcontractors of BuyRexroth or of BRR or its Affiliates.
1.2 Scope of Agreement; Order of Precedence.
Sales of Products and Services by BuyRexroth to Customer are expressly subject to and conditioned upon the terms and conditions contained in these Standard Terms & Conditions of Sale, which include any provisions made available by BuyRexroth on the Website or via a hyperlink herein, and any terms set forth in the Quotation, Statement of Work, or Purchase Order, which collectively constitute a sales agreement entered into between BuyRexroth and Customer (collectively, “Standard Terms”). If BuyRexroth and Customer have explicitly agreed in writing via a signed agreement, to terms and conditions applicable to the sale of Products and Services in exception or addition to these Standard Terms, then those terms and conditions (“Independent Agreement”) will apply to the sale of Products and Services. In the event of a conflict, (a) the commercial terms of the Purchase Order will take precedence over any Independent Agreement, Quotation, or these Standard Terms; (b) the terms of an Independent Agreement shall take precedence over any Quotation or these Standard Terms; and (c) any Quotation shall take precedence over these Standard Terms.
2 ORDERS, CANCELLATION AND CHANGES.
BuyRexroth’s acceptance of any Order from Customer is expressly conditioned on Customer’s consent to these Standard Terms, which are part of and incorporated in any Order, irrespective of whether the Order references these Standard Terms. Any additional or different terms or conditions, or warranties, whether in a purchase order or another communication, understanding, or agreement, that in any way purport to modify these Standard Terms are expressly objected to and rejected and will not be binding on BuyRexroth, unless expressly agreed to in writing signed by an authorized representative of BuyRexroth ; neither BuyRexroth’s subsequent lack of objection to any terms, nor the delivery of the Products or Services, shall constitute an agreement by BuyRexroth to any such terms. Customer is hereby notified of BuyRexroth’s express rejection of any terms inconsistent with Standard Terms or to any other terms proposed by Customer. Trade custom, trade usage and past performance are superseded by these Standard Terms, and shall not be used to interpret these Standard Terms. Customer’s issuance of an Order or acceptance of, or payment for, the Products and Services when provided will be deemed conclusive evidence of, and constitutes Customer’s acceptance of and assent to BuyRexroth’s these Standard Terms. Customer’s acceptance of any offer (or counter-offer) by BuyRexroth is limited to these Standard Terms. BuyRexroth may reject an Order in whole or in part for any lawful reason in its sole discretion. An Order will be deemed accepted by BuyRexroth upon BuyRexroth issuing a written order confirmation (“Order Acknowledgment”) or by not executing an order on the Website. No Order will be binding upon BuyRexroth until accepted by BuyRexroth. BuyRexroth may, from time to time, specify a minimum order quantity and/or standard order increments for particular Products. BuyRexroth may also, from time to time, specify the intervals between Orders for particular Products. If Customer requests Products in quantities, which do not meet BuyRexroth’s minimum order quantity, or standard order increment requirements, or Order interval requirements, BuyRexroth may invoice Customer the extra cost incurred by BuyRexroth in complying with Customer’s request.
2.2 Cancellations/Changes by Customer.
All Order cancellations or changes require BuyRexroth’’ consent. Without such required consent, a cancellation of or change to the Purchase Order will entitle BuyRexroth to all remedies available by law or equity including, but not limited to, cancellation costs or increased prices. Customer shall indemnify BuyRexroth against any loss, damage, or expense incurred by BuyRexroth in relation to any cancellation or change of the Order by Customer in violation of this Section 2.2.
2.3 Cancellations/Changes by BuyRexroth.
BuyRexroth may cancel a Purchase Order or require full or partial early payment if: (a) the solvency or operation of Customer is in question, (b) Customer becomes the subject of any bankruptcy proceedings, (c) there is an appointment of a trustee or receiver for Customer, (d) Customer makes an assignment or other arrangement for the benefit of its creditors, or (e) if the Order conflicts in any way with the corresponding Quotation, or the Customer requirements on which the Quotation is based are no longer valid or correct, each as determined by BuyRexroth in BuyRexroth’s sole discretion.
3 PRICES, PAYMENT TERMS AND TAXES.
Customer shall pay BuyRexroth according to the prices made available by BuyRexroth on the Website or as otherwise set forth in writing by BuyRexroth. All prices are published and/or quoted in USD and are subject to the delivery terms defined in Section 4 below. All prices are subject to adjustment by BuyRexroth prior to shipment for changes in tariffs, economics, exchange rates, as applicable, or as otherwise provided in these Standard Terms. Unless otherwise expressly provided in these Standard Terms, fees paid are non-refundable. Unless otherwise agreed by BuyRexroth in writing, Customer shall reimburse BuyRexroth for actual expenses (including travel and mileage) incurred by BuyRexroth or BRR distributors in performing any Services.
3.2 Material Cost Increase.
As to Website orders requiring shipment of multiple products over substantial periods of time, if BRR has assessed an increase in the price of a Product above the price quoted on the Website as to some or all of the Products, which affects BuyRexroth’s ability to fulfill the Order, BuyRexroth may either request Customer’s consent to an increased cost or may terminate any impacted Order on ten (10) business days’ written notice to Customer without further liability or obligation.
Most Orders will be processed on the Website, with credit card purchases. As to special orders or national accounts with direct billing, BuyRexroth shall invoice Customer for the price of the Products, Software, and/or Services any time on or after the date that Products are shipped or , Software, and/or provides the Services are provided. Any invoice errors must be disputed in writing by Customer within thirty (30) days of the invoice date, and are subject to correction by BuyRexroth.
3.4 Payment Terms.
Most orders will be processed on the Website with credit card purchases. As to special orders or national accounts with direct billing, and unless otherwise agreed upon between the Parties in writing, Customer shall pay BuyRexroth for Products and Services as invoiced by BuyRexroth within thirty (30) days from date of invoice, without offset, counterclaim, holdback, deduction, or discount for early payment. Customer’s failure to pay any undisputed amount when due will be deemed a material breach of these Standard Terms. Undisputed past due amounts will be subject to the maximum legal rate of interest or one and one-half percent (1.5%) per month, whichever is less. Customer shall pay all costs and expenses incurred by BuyRexroth as a result of non-payment or delinquent payment by Customer, including without limitation collection costs, interest, and reasonable attorneys' fees.
Customer may not set-off or recoup any amounts due (or that may become due), or are allegedly due from BuyRexroth to Customer, from its debts or amounts due to BuyRexroth however and whenever arising.
BuyRexroth’s pricing excludes all sales, use, excise, value-added, and other similar taxes, charges and duties (including import and export duties). Customer will be solely responsible for all taxes imposed on Customer based upon applicable governing Law. BuyRexroth agrees that no tax for which a valid exemption exists, based upon applicable governing laws, will be included in the pricing, nor subsequently charged. In order for valid sales and use tax exemptions to exist, Customer agrees to properly document and provide BuyRexroth with applicable sales and use tax exemption certificates when requested by BuyRexroth. Each payment to BuyRexroth shall be made without withholding for any taxes, unless required by Law. Customer shall inform BuyRexroth of any withholding tax obligation on payments due to BuyRexroth under any invoice as soon as Customer becomes aware of such withholding tax obligation. If BuyRexroth believes that it is eligible for exemption from, or reduction of, any U.S. withholding tax (or other withholding or similar tax of one or more other jurisdictions), BuyRexroth shall deliver to Customer a completed, duly executed IRS Form W-9 or Form W-8 (or other appropriate form of all applicable jurisdictions as required under the Law of all applicable jurisdictions) valid through the date of payment. Customer shall pay any withholding tax not eliminated or reduced to the relevant taxing authority. Customer shall promptly deliver to BuyRexroth a certificate evidencing the payment of any such withholding tax. Each Party will solely be responsible for its applicable tax administration based upon the legal responsibility of the tax per applicable Law.
3.7 Security Interest.
Customer hereby grants to BuyRexroth and BuyRexroth reserves, a purchase money security interest in all present and future Products sold or delivered by BuyRexroth to Customer under these Standard Terms, and all profits and proceeds arising from or related to the Products. Any such security interest shall be satisfied by payment in full of the invoiced amount. Customer must, on request from BuyRexroth, execute promptly any documents and perform any other acts, at Customer’s sole expense, that BuyRexroth considers necessary or advisable to confirm, continue and/or perfect the security interests granted under these Standard Terms. Customer irrevocably authorizes BuyRexroth to execute and file any financing statements covering all Products subject to the security interest granted under these Standards Terms. Notwithstanding the foregoing, a copy of the sale or channel agreement may be filed on behalf of BuyRexroth with the appropriate authorities at any time as and for a financing statement.
4 PACKAGING, DELIVERY AND RISK OF LOSS.
Unless otherwise agreed upon between the Parties in writing or specified in the Quotation, standard packaging for continental United States domestic shipment is shown on the Website. When special domestic or export packaging is requested, Customer will be charged for any additional expenses. Packages are clearly labeled to BRR standards and labeled to conform to UN Model Regulations when containing hazardous materials.
4.2 Delivery Terms.
All delivery dates are estimates only, and subject to prompt receipt of all necessary information from Customer that is requested from BuyRexroth. BuyRexroth’s only obligation with respect to delivery dates is to make reasonable efforts to meet such delivery dates. Unless otherwise agreed upon between the Parties in writing or specified in the Purchase Order, all shipments shall be FCA (Incoterm, 2020) at BuyRexroth’s shipping distributor or if the shipment is from BRR, then BRR’ plants/warehouses. Partial deliveries are permitted. BuyRexroth may deliver Products in advance of the delivery schedule. If, for whatever reason, BuyRexroth experiences Product shortages, BuyRexroth may hold or allocate Products among its customers as BuyRexroth considers appropriate.
4.3 Risk of Loss – Delivery.
Risk of loss and title to the Products transfer upon completion of delivery of the Products per the applicable delivery term specified in Section 4.2 above. Notwithstanding the applicable delivery terms, BuyRexroth will not be liable for any delays, breakage, loss or damage after having made delivery to the first transportation carrier. All claims for loss or damage in transit are to be made by Customer directly to the transportation carrier and the appropriate insurance carrier, if any, for such shipment. No deductions of any kind from the invoice amount shall be made.
4.4 Inspection and Acceptance.
Customer will inspect the Products within a reasonable period after shipment, such inspection of Products not to exceed fifteen (15) business days (“Product Acceptance Period”). Products will be presumed accepted unless BuyRexroth receives written notice of rejection from Customer, explaining the basis for rejection within the Product Acceptance Period (“Acceptance”). Rejection may be based solely upon the failure of the Products to materially comply with the Specifications through no fault of Customer. All claims not made by Customer in writing as specified above and received by BuyRexroth within the Product Acceptance Period will be deemed waived. Upon receipt of Customer’s written notice, BRR or its designated distributor will have the opportunity to inspect, evaluate and test the Product at Customer’s premises or require Customer to send the Product or adequate samples thereof to BuyRexroth or to a distributor designated by BuyRexroth for inspection, evaluation and testing. All rightfully rejected Products shall be returned to BuyRexroth or its designated distributorin accordance with the provisions set forth in Section 5.10. No inspection or any other actions by third-parties are authorized or will be paid for by BuyRexroth without BuyRexroth’s prior written consent.
Customer’s sole and exclusive remedy, and the entire liability of BuyRexroth and its Third Party Providers for any rightful rejection of the Products during the Product Acceptance Period is, at BuyRexroth’s sole option and expense, (a) the repair or replacement of the Product and/or Software; or (b) a credit equal to the purchase price of the Products in lieu of any obligation to repair or replace Products under this Section 4.4. BuyRexroth will not be responsible for any costs or charges for or related to labor and/or parts incidental to the handling and attempted use of the Products.
4.5 Installation and Commissioning.
Customer is responsible for the proper handling, storage, installation and commissioning of Products in accordance with the Documentation. Such services may be available by BuyRexroth, BRR or Third Party Providers, subject to and included in an Order, or a mutual written agreement between Customer and BuyRexroth.
4.6 Acceptance, Installation and Testing. [not applicable]
5 LIMITED WARRANTY.
5.1 Product Warranty.
With respect to a BRR sold by BuyRexroth to Customer hereunder (including firmware that is installed on, delivered with and not separable from a BRR Product but excluding Software or Software components, the warranty for which is set forth in Section 5.3 below), and subject to Sections 5.5 through 5.10 of these Standard Terms, BRR (and not BuyRexroth) warrants: the BRR Product to be free from defects in material and workmanship under normal operating conditions and proper application in accordance with the Specifications listed in the Documentation or Data Sheet, which accompanies such BRR Product or are otherwise made available by BRR in writing. The applicable warranty period is as follows (“Product Warranty Period”): Unless otherwise specified in writing by BRR in a Quotation or Order, the warranty period for all BRR Products (excluding Software or Software components) shall be (i) eighteen (18) months after date of shipment from BRR facility, or (ii) twelve (12) months after the Product is placed in service, whichever occurs first. BRR may offer extended and/or conditional warranties for BRR Products, systems, assemblies and power units only as specified in writing in either a Statement of Work or an official BRR warranty program. Customer or Customer’s vendor-supplied items that are integrated or provided with Product systems, assemblies or power units are warranted per original Customer or its vendor’s original manufacturer’s warranty and warranty policy.
Customer’s sole and exclusive remedy and the entire liability of BuyRexroth and BRR for breach of warranty within the BRR Product Warranty Period under this Section 5.1 is, at BRR’ option and expense: (a) repair or replacement of the BRR Product; or (b) a credit equal to the purchase price (less a reasonable depreciation for use, damages and obsolescence) of the BRR Product in lieu of any obligation to repair or replace the BRR Product under this provision.
5.2 Non-BRR Manufactured Product Warranty.
BuyRexroth and BRR make no warranty, express or implied, as to Products not manufactured or sold by BRR through BuyRexroth. The only warranty is the limited express warranty provided by the manufacturer of the Product, subject to all limitations and exclusions contained in the manufacturer’s warranty. As to Products sold by BuyRexroth, but not manufactured by BRR, BUYREXROTH.COM AND BRR TO THE FULLEST EXTENT PERMITTED BY LAW, SPECIFICALLY AND EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ANY OTHER WARRANTIES ARISING FROM OR OUT OF ANY COURSE OF DEALING, USAGE OF TRADE, SPECIFICATION, PROPOSAL, PERFORMANCE OR CUSTOM, AND ANY STATUTORY WARRANTY ON HIDDEN OR LATENT DEFECTS. CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR ALL CLAIMS, DAMAGES, LOSS OR INJURIES (WHETHER DIRECT, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL) BASED ON OR ARISING FROM ANY DEFECT, FAILURE, MALFUNCTION, BREACH OF WARRANTY OR ANY OTHER PERFORMANCE, NONCONFORMANCE OR NONPERFORMANCE OF ANY PRODUCT NOT MANUFACTURED BY BRR, WHETHER THE CLAIM IS IN CONTRACT, EQUITY, INDEMNITY, INFRINGEMENT, WARRANTY, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY) OR OTHERWISE AND HOWEVER INSTITUTED SHALL BE THE LIMITED EXPRESS WARRANTY OF THE MANUFACTURER OF THE PRODUCT.
5.3 Software Warranty.
Subject to Sections 5.5 through 5.10 of these Standard Terms, BRR (and not BuyRexroth) warrants, that, commencing from the date of first use of the Software license and for a period of ninety (90) days (the “Software Warranty Period”), the Software as delivered will substantially conform to and perform in accordance with the Documentation. This software warranty will apply unless BRR provides a different software warranty for the specific Software in the EULA or Documentation associated with that Software, and such different software warranty shall solely apply. BRR DOES NOT WARRANT THAT THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, VIRUS-FREE, FREE OF MALICIOUS CODE OR THAT ANY DEFECTS WILL BE CORRECTED. BRR DOES NOT WARRANT THAT THE USE OF THE SOFTWARE WILL NOT BE IMPAIRED BY DOWNTIME, MAINTENANCE ACTIVITIES, FURTHER DEVELOPMENTS, UPDATES AND UPGRADES OR MALFUNCTIONS. IN ADDITION, BRR DOES NOT WARRANT THAT THE SOFTWARE OR ANY EQUIPMENT, APPLICATIONS, OPERATING SYSTEMS OR NETWORK ON WHICH THE SOFTWARE IS USED WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK OR THAT SUCH SOFTWARE WILL INTERACT WITH THIRD PARTY EQUIPMENT, DEVICES, APPLICATIONS, OPERATING SYSTEMS, NETWORKS OR OTHER SOFTWARE.
Customer’s sole and exclusive remedy and the entire liability of BRR and its Third Party Providers for breach of warranty within the Software Warranty Period under this Section 5.3 will be, at BRR’ option and expense, (a) repair or replacement of the Product and/or Software, or (b) a credit for any licensing fees for the Software.
5.4 Service Warranty.
Subject to Sections 5.5, 5.7 through 5.10 of these Standard Terms, BRR (and not BuyRexroth) warrants that the Service on BRR Products will be performed in a professional and workmanlike manner, consistent with commercially reasonable standards in the industry. For any breach of warranty under this Section 5.4, Customer must provide a written claim within ten (10) business days after provision of the applicable Service specifying in reasonable detail the nonconformity with such warranty, and Customer’s sole and exclusive remedy and the entire liability of BuyRexroth and BRR and their suppliers for breach of warranty under this provision is, at BRR’ sole option and expense to use commercially reasonable efforts to re-perform the identified nonconforming Service. If BRR concludes that re-performance of these nonconforming Service is impracticable for any reason, then BuyRexroth or BRR, as appropriate, will refund the fees paid by Customer to BuyRexroth or BRR allocable to those nonconforming Service.
5.5 Outside Warranty and Liability.
Customer expressly acknowledges that BuyRexroth and BRR are not responsible or liable for: (a) Products, software, services, components or systems that BuyRexroth has not supplied; (b) Products, software, services, components originating from third parties that are supplied by BuyRexroth under or at the direction of Customer; (c) any end Product or software in which the Products or Software are installed or incorporated as a component or subpart; (d) conditions, changes, alterations, additions or applications to or for Products, Software or Services, unless made or specifically authorized in writing by BRR; or (e) Customer’s failure to perform maintenance to Product or Software (including firmware) as recommended by BRR, or to otherwise comply with the Specifications and/or industry practices. BuyRexroth and BRR shall have no liability, obligation or responsibility for components and systems over which BuyRexroth and BRR have no control, including without limitation, contamination, incorrect power supply, pressures in excess of recommended maximum, products damaged or subject to voltage, humidity, or temperature outside of specified range, accident, abuse or misuse after shipment from BRR’s factory, Products or Software altered, disassembled or repaired by anyone other than BRR personnel, personnel or persons so designated in writing by BRR’s Service Department prior to commencement of said work. Types of failures and/or damages that are not attributable to BRR breach of warranty, and which are not considered by BuyRexroth and BRR as part of the warranty on BRR Products include, but are not limited to, the failures and/or damages that result from or are attributable to the following:
5.5.1 Accident, abuse, neglect;
5.5.2 Customer’s improper storage or handling prior to installation and operation;
5.5.3 Improper alignment, connection, configuration, orientation, assembly work, and pre-conditioning prior to or during BRR Product’s operation;
5.5.4 Contaminants found in/on BRR Product;
5.5.5 From the action of, or deterioration from, contaminants in the form of air and fluid borne particles, solids, liquids, entrained gases, chemicals, and biological contaminants in BRR Product’s connected electrical, heating/cooling, flushing, lubrication, mechanical and fluid power systems;
5.5.6 Operating and maintaining BRR Product or Software in a manner or under service conditions outside of its Specifications or the Documentation without the prior written consent of BRR, and then only in strict accordance to any/all additional or modified Specifications or Documentation pertaining to consent;
5.5.7 Modifications and repairs of BRR Product except for those provided by BRR Services or BRR’ authorized Third Party Providers;
5.5.8 Pressurized cleaning or attributed to the use of excessive heat and force, aggressive abrasives, cleaners and/or solvents during cleaning of a BRR Product;
5.5.9 Any kind from erosive or corrosive action of any gases or liquids evidently encountered by the BRR Product;
5.5.10 Excessive electrical potential, electrical current and magnetic fields emanating from a BRR Product’s operating environment;
5.5.11 BRR Product ordinary wear and tear.
5.6 Warranty Processing Procedure.
For any BRR Product or Software breach of warranty brought within the applicable Product Warranty Period or Software Warranty Period, as applicable, Customer shall promptly notify BuyRexroth and BRR in writing and may request authorization to return such BRR Product. Customer must provide a written explanation of the breach of warranty (the “Warranty Claim”) as such warranty is set out in this Section 5, subject to the provisions of Section 5. Subsequently, BRR through its inspection process must be satisfied that the claimed breach of warranty exists. For Warranty Claims where physical inspections of the BRR Product are required, Customer must follow BRR’ return instructions as set forth in Section 5.10 of these Standard Terms, to return the BRR Product to the designated BRR’ service facility at Customer’s own risk and expense. BRR shall have the right to request reasonable evidence of and impose reasonable requirements for inspection and evaluation of the Warranty Claim. Warranty repair or replacement by BRR shall not extend or renew the applicable BRR Product Warranty Period or Software Warranty Period, unless expressly stated in writing by BRR. BRR will not be responsible for labor and material costs of removal or reinstallation of BRR Products and Software. Returned BRR Products that are not defective, that are not subject to warranty coverage as described in this Section 5, or that contain missing or damaged parts, will be returned to Customer at Customer’s sole expense, without credit, repair or replacement.
5.7 Other Limited Warranties and No Other Warranties.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 5, BUYREXROTH.COM AND BRR MAKE NO OTHER WARRANTY OR REPRESENTATION TO CUSTOMER, EITHER EXPRESS OR IMPLIED, AND TO THE FULLEST EXTENT PERMITTED BY LAW, BRR SPECIFICALLY AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ANY OTHER WARRANTIES ARISING FROM OR OUT OF ANY COURSE OF DEALING, USAGE OF TRADE, SPECIFICATION, PROPOSAL, PERFORMANCE OR CUSTOM, AND ANY STATUTORY WARRANTY ON HIDDEN OR LATENT DEFECTS.
If Customer or BRR agent grants to an end user any warranty which is greater in scope, time period or labor allowance than the warranty stated herein, BRR shall not be liable beyond the stated warranty. Except as otherwise provided under Section 5.6 above, equipment and accessories not manufactured by BRR shall not be the responsibility of BRR.
5.8 Exclusive Remedy.
EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW, THIS SECTION 5 PROVIDES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR ALL CLAIMS, DAMAGES, LOSS OR INJURIES (WHETHER DIRECT, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL) BASED ON OR ARISING FROM ANY DEFECT, FAILURE, MALFUNCTION, BREACH OF WARRANTY OR ANY OTHER PERFORMANCE, NONCONFORMANCE OR NONPERFORMANCE OF ANY BRR PRODUCT, SOFTWARE OR SERVICE, WHETHER THE CLAIM IS IN CONTRACT, EQUITY, INDEMNITY, INFRINGEMENT, WARRANTY, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY) OR OTHERWISE AND HOWEVER INSTITUTED.
5.9 Customer Warranty.
Customer warrants that (a) Customer has the corporate power and authority to enter into, and perform its obligations under these Standard Terms; (b) Customer will not make any false, inaccurate, incomplete representation, advertisement or warranty, whether written or oral, to any third party relating to any Products or Services and that it will not make a statement or reference related to BuyRexroth or BRR without BRR’ express written permission and (c) Customer will perform all maintenance to Software (and firmware), including Software Updates, as recommended or otherwise made available without change by BRR.
5.10 Return Goods Authorization Process.
The BRR Return Authorization Process (“RGA Process”) shall apply to all BRR Products to be returned (collectively referred to as “Return BRR Product”) to BRR designated location or BRR’ designated Third Party Provider, which RGA Process is available upon request by Customer by contacting BRR service at www.boschrexroth.com/en/us/contact or 1-800-REXROTH, and which is hereby incorporated by reference. Customer agrees to the terms and conditions of the RGA Process, which includes the requirement to obtain a Returns Good Authorization, provide a clear reason for the Return BRR Product (including for rejections or breach of warranty claims), and to properly identify the Return BRR Product itself. Customer is solely responsible for returning the BRR Product free of contaminants, appropriately packaged, properly identified, pre-paid and insured for delivery at the designated location and freight method as instructed in the RGA Process. Title of Return BRR Product remains unchanged, subject to the provisions of Section 3.7, unless a transfer of title is executed through the RGA Process. Disposition of the Return BRR Product after receipt at the BRR designated location shall be subject to the terms and conditions of the RGA Process. For BRR Products rightfully rejected per Sections 4.4 or 4.6 or breach of warranty per Section 5, respectively, and returned by Customer, BRR is responsible for shipping costs to the BRR designated location in an amount not to exceed normal surface shipping charges. If BRR reasonably determines that rejection or the return was improper, Customer will be responsible for all expenses incurred by BRR arising from the improper rejection or improper warranty claim, including all BRR costs for BRR Product inspection, storage, shipping and disposal.
Customer is responsible for proper disposal of any BRR Products, which shall be in accordance with the considerations or recommendations listed in the Documentation, if any.
5.11 Services and Repair.
Quotations may be requested for non-warranty Product repair services, including Software, which service may be provided by BuyRexroth, BRR or a Third Party Provider. The available scope of such services, the terms and conditions of such services, including warranty, may vary by Product and the business entity providing the services.
6. INTELLECTUAL PROPERTY RIGHTS/SOFTWARE.
6.1 Intellectual Property Rights – Ownership.
BRR exclusively owns and shall retain exclusive ownership of all right, title and interest worldwide, including all inventions (whether patented or not), patent applications and disclosures, patents, design rights, copyrights and copyrightable works (including, but not limited to, the right to reproduce and make copies of an original work, the right to prepare derivative works, the right to distribute copies to the public, the right to public performance, the right to public display and the right to public performance of sound recordings), trademark, service marks, trade names, domain name rights, mask work rights, know-how and trade secrets and all other forms of intellectual property and proprietary rights (collectively, “Intellectual Property Rights”) in and related to: (a) the BRR Products, Services and Software and all updates, modifications, improvements and derivatives thereof; and (b) all other ideas, inventions (whether patentable or not), concepts, designs, methods, processes, software (including source code and object code), data (other than Customer Data) and works of authorship authored, developed, conceived, reduced to practice or licensed by BRR or an Affiliate thereof for or in connection with any BRR Products, Software or the Services. No rights are granted to Customer hereunder other than as expressly set forth herein, and BRR (and its licensors, where applicable) reserve all rights not expressly granted herein. For the avoidance of doubt, no right, title or interest to any of the Software’s source code is granted under these Standard Terms. Customer shall not itself or assist or instruct others to attempt in any way to reverse engineer, copy/reproduce, decompile, disassemble, translate, fragment parts or otherwise obtain or attempt to obtain in any way access to the BRR Product, Software or to the Software’s source code provided by BuyRexroth or BRR without BRR’ prior written consent, except as required in accordance with Section 6.4 below. Customer shall not remove, change, alter or otherwise render unintelligible any designation of the Software, including copyright notices, trademarks, serial numbers and the like. Unless expressly agreed in writing by BRR, Software will be treated as Confidential Information as defined in Section 9.
6.2 Third Party Intellectual Property Rights.
To the extent the BRR Products or Services (including, but not limited to, any Software contained therein) contain third party Intellectual Property Rights, BRR only provides those rights which BRR has lawfully obtained from such third party. To the extent that Customer provides any software to BRR or directs BRR to include any third-party software, Customer shall secure any and all third-party Intellectual Property Rights necessary for BRR to use such software and Customer shall indemnify BRR for all costs, expenses and damages caused by Customer’s failure to secure the necessary Intellectual Property Rights in such software.
6.3 License Grant.
As an agent for BRR, BuyRexroth hereby grants to Customer a non-exclusive, irrevocable, non-transferable, non-sublicensable, royalty free, perpetual license to use the Software delivered as firmware in BRR Products solely in connection with the normal and intended use of the BRR Products in accordance with all Documentation and as authorized under these Standard Terms and any applicable EULA (as defined below). This license shall be transferable only in the event of the sale or transfer of BRR Products to a third party resulting in Customer’s discontinuation of use. BRR hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable right to use the Software (specifically excluding Software delivered as firmware in BRR Products) solely in connection with the normal and intended use of such Software in accordance with all Documentation as authorized under these Standard Terms and any applicable EULA. Notwithstanding the foregoing grant, the Software is not sold to Customer. Unless otherwise expressly agreed in writing by BRR, this Section 6.3 does not include a license or a right to use any Software Upgrades which may be provided from time to time at BRR’s discretion. Such Software Upgrades may be purchased separately and will not be considered part of the Software delivery of a previous version. BRR reserves the right to make the availability of Software Updates and Software Upgrades conditional upon the existence of a valid software maintenance agreement between BRR and Customer. In the event any Software contains a click-through, pop-up or other end-user license agreement (collectively, “EULA”), BRR will notify Customer of such EULA at the time of Software delivery and, upon acceptance of the EULA or use of such Software by Customer, the terms of the EULA shall control over the terms of these Standard Terms. In the event Customer does not accept the EULA at the time of delivery, Customer shall not use the BRR Product and/or Services, and any use of the Software shall be considered an unauthorized use. To the extent such Product and/or Services contain free or open source software, the OSS-Terms and Conditions (defined below) shall apply.
Subject to Customer’s compliance with these Standard Terms, BuyRexroth, as agent for BRR, hereby grants to Customer a limited, non-exclusive license to copy, publish and transmit any Documentation provided to Customer by BRR with the BRR Product solely for Customer’s internal business purposes, and except as required in accordance with Section 6.4 below.
6.4 Open Source Software.
To the extent such BRR Product or Services (including, but not limited to, any Software contained therein) contain free or open source software (collectively, “OSS”), such OSS may be subject to separate third-party OSS licensing terms and conditions (“OSS-Terms and Conditions”). Under such OSS-Terms and Conditions, BRR may be required to provide the OSS-Terms and Conditions to Customer and Customer must comply with all of the applicable OSS-Terms and Conditions and fulfill all corresponding obligations of the applicable OSS-Terms and Conditions, especially if Customer further distributes, publishes or provides the BRR Products or Services through sales or other transfer to third parties (including an end user or customer). Such obligations may include, for example, documentation obligations or obligations to provide the source code of any software in which the OSS has also been integrated. An overview of all OSS-components contained in the Products and/or Services, as well as corresponding license text of the OSS Terms and Conditions (of all originating OSS authors), are part of or are included with BRR’ Documentation, BRR Products and/or Support Service. New or updated Software component versions included in BRR’ Products and/or Services may contain other and/or additional OSS. For such other and/or additional OSS, the same terms and conditions as applicable apply. Customer shall use commercially reasonable efforts to not combine or request BRR to combine the other any software, goods and/or services (including, but not limited to, any BRR Products or Services, or any Software contained therein) with any OSS or other data in any manner, which would result in the other Party’s software, goods and/or services becoming subject to the terms of an OSS license. For any software provided to BRR by or on behalf of Customer, Customer shall disclose in writing a list of all applicable OSS -Terms and Conditions, and third party software included in such software, at the time of delivery of such software to BRR. Customer shall indemnify BuyRexroth and BRR for all costs, expenses and damages caused by Customer’s failure to disclose OSS-Terms and Conditions and/or third party license terms in software provided by Customer, directed by Customer or on behalf of Customer.
6.5 Customer Feedback.
If Customer provides any ideas, suggestions or recommendations to BRR regarding the BRR Products, Software, and/or Services (“Feedback”), Customer, on behalf of itself and its Affiliates and their customers and end customers, hereby grants to BRR and its Affiliates a non-exclusive, irrevocable, paid-up, royalty-free, perpetual, worldwide license under and to all of Customer’s rights and interests that are incorporated in any Feedback to make, have made, use, sell, offer to sell, import, reproduce, display, perform or distribute any BRR Products, Software and/or Services and such Feedback.
7 DATA PROTECTION AND PRIVACY
7.1 Customer Data.
Customer represents and warrants that: (a) all Customer Data it provides to BuyRexroth or BRR hereunder is owned by Customer or Customer has the right to provide such Customer Data to BuyRexroth or BRR for use by BuyRexroth and BRR in connection with these Standard Terms; and (b) any authorized Processing of Customer Data by BuyRexroth or BRR does not and will not violate or infringe the intellectual property, privacy or publicity rights of any third party, or any applicable data privacy and security Laws.
7.2 License to Customer Data.
Customer hereby grants to BuyRexroth and BRR the right to use the Customer Data for the purposes of Processing such Customer Data in conjunction with the Products, Software and/or Services, and/or performing all other obligations of BuyRexroth or BRR under these Standard Terms. In addition, Customer hereby grants to BuyRexroth and BRR a limited, non-exclusive, perpetual, irrevocable, royalty-free, non-transferable, worldwide license to use, and sublicense to Affiliates, agents, consultants and subcontractors within the same scope, the Customer Data, for the following purposes (a) to improve and enhance the Products, Software and/or Services and for other development, diagnostic and corrective purposes in connection with the Products, Software and/or Services; (b) the investigation of any accidents or claims related to a defect, failure, or alleged defect or failure of BRR’ Products, Software, and/or Services; (c) the defense of any claim against BuyRexroth and BRR brought by Customer or any third party; and (d) any other purpose as mutually agreed in writing between the Parties.
7.3 Aggregated and Anonymized Data.
The Software may collect and compile data and information related to its use which may be aggregated and anonymized, including compiling statistical and performance information related to the provision and operation of the Software (“Aggregated and Anonymized Data”). Aggregate and Anonymized Data shall only include data or information which (a) is anonymized and NOT identifiable to any person or entity; and (b) which does not reveal Customer’s identity. As between BuyRexroth, BRR and Customer, all right, title, and interest in Aggregated and Anonymized Data, and all intellectual property rights therein, belong to and are retained solely by BuyRexroth and BRR. Customer acknowledges that BuyRexroth and BRR may compile Aggregated and Anonymized Data based on Customer Data collected, produced or otherwise processed by the Software. Customer shall not, and shall not assist any third party to, oppose, contest, restrict or otherwise challenge the rights of BuyRexroth and BRR’ related to the Aggregated and Anonymized Data.
7.4 Protection and Privacy- Customer Data and Personal Information.
To the extent BuyRexroth and BRR Processes Customer Data , they have implemented and maintain commercially reasonable administrative, physical, and technical safeguards designed: (a) to maintain the security, confidentiality and integrity of such Customer Data; (b) to protect such Customer Data from known or reasonably anticipated threats or hazards to its security and integrity, accidental loss, alteration, disclosure and all other unlawful forms of processing, and (c) so that they do not constitute unfair, deceptive or abusive acts or practices with respect to such Customer Data. The terms of the Data Protection Notice at https://www.boschrexroth.com/en/us/data-protection-notice/are hereby incorporated by reference and shall apply to the extent Customer Data includes Personal Data.
7.5 Protection and Privacy – Customer Requirements.
Customer is solely responsible for procuring and maintaining its network connections and Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Products and Services including without limitation, modems, hardware, servers, software, operating systems, networking and web servers (“Customer Equipment”). Customer shall also be responsible for maintaining the security of the Customer Equipment, Customer account, passwords (including, but not limited to, administrative passwords) and files, and for all uses of Customer account or the Customer Equipment with or without Customer’s knowledge or consent.
8.1 Indemnification – BRR.
BuyRexroth and BRR do not indemnify any Customer for any Product or Service that is not a BRR Product, BRR Software or BRR Service.
Except as set forth below in Section 8.2 and 8.3, BRR will defend any third party lawsuit or action against the Customer based on a claim that the BRR Products, Software and/or Services as delivered by BuyRexroth directly infringe a valid U.S. patent or copyright, and indemnify Customer for any final judgment assessed against Customer resulting from such lawsuit, provided that Customer: (a) promptly notifies BuyRexroth and BRR at the time it is apprised of the third-party claim; (b) provides any and all relevant materials and information related to the claim to BuyRexroth and BRR; (c) cooperates and provides BuyRexroth and BRR with reasonable assistance for the defense and disposition of the claim; and (d) gives BuyRexroth and BRR exclusive control over the defense and resolution of the claim, using counsel of BuyRexroth’s and BRR’ choice. Without BuyRexroth’s and BRR’ prior written consent, BRR will not be responsible for: (x) any compromise or settlement made by Customer; and (y) any defense fees or costs incurred by Customer or any expenses incurred by Customer for itself or on behalf of BuyRexroth or BRR.
8.2 Infringement Remedy.
Subject to Section 8.5 of these Standard Terms, if a BRR Product, Software and/or Service is held to constitute infringement or its use is enjoined, BRR may, at its sole option and expense, and as Customer’s sole and exclusive remedy: (a) procure for Customer the right to continue using the BRR Product, Software and/or Service; (b) replace the BRR Product, Software and/or Service with a similar non-infringing product, software or service; (c) modify the BRR Product, Software or Service, or any portion thereof, so that it is non-infringing; or (d) accept return of the BRR Product and/or terminate Customer’s rights to use or make use of the BRR Products, Software or Service, and grant a Customer credit for the purchase price paid for the BRR Product, Software and/or Service, less a reasonable depreciation for use, damages and obsolescence as applicable. In the event that BRR believes that any of the BRR Products, Software or Service may be subject to a claim of infringement, BuyRexroth and BRR reserve the right at their sole discretion to stop delivering or providing Customer access to the BRR Product, Software, Software or Service, and such stoppage will not be considered a breach by BuyRexroth or BRR of these Standard Terms. THIS SECTION 8.2 STATES BUYREXROTH’S AND BRR’ ENTIRE LIABILITY, CUSTOMER’S SOLE RECOURSE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT. ALL WARRANTIES RELATED TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, ARE HEREBY DISCLAIMED.
8.3 Limitation on Infringement.
BuyRexroth and BRR will have no obligation or liability under this Section 8 and Customer shall indemnify, defend and hold BuyRexroth and BRR Indemnified Parties harmless to the extent that any claim for infringement arises out of or results from any of the following: (a) Products, Software and/or Services that are not BRR Products, Software and/or Services; (b) Customer’s designs, changes, drawings or specifications; (c) BRR Products, Software and/or Services used other than for the purpose for which BRR intended; (d) combining any BRR Products, Software and/or Services with any article, component, hardware, system or software not provided BRR to BuyRexroth; (e) Customer’s failure to promptly update any Software previously provided by BuyRexroth or BRR or a third-party on its behalf; (f) the implementation of Standardized Technologies into the BRR Products, Software and/or Services, to the extent BRR’ indemnification obligation under this Section 8 stems from Standardized Technologies ; (g) the application or use of any BRR Products, Software and/or Services, which fail to comply with the specification or other written instruction from BRR; or (h) any alteration, customization or other modification of the BRR Products, Software or Services other than by BRR. For the purposes of these Standard Terms, (“Standardized Technologies”) means technical specifications or functions: (i) adopted by a standards organization (e.g. ETSI or IEEE), or (ii) defined by research institutes, industrial companies or market participants to ensure technical conformity or compatibility, or (iii) established by common practice in a particular field)
8.4 Indemnification – Customer.
Customer shall, at Customer’s sole expense, indemnify, defend and hold BuyRexroth and BRR and their Affiliates, and their respective owners, shareholders, members, managers, directors, officers, employees, representatives, agents, subcontractors, contractors, successors and assigns (collectively, “BRR Indemnified Parties”) harmless against all losses, claims, liabilities, damages, causes of action, judgments, settlement payments, interest, awards, penalties, fines, costs and expenses (including without limitation reasonable court costs, reasonable attorneys’ fees, and arbitration, mediation and expert fees and any recall costs and expenses) arising out of or relating to Customer’s or Customer’s Affiliate’s, or their subcontractor’s, supplier’s, integrator’s, end customer’s or representative’s: (a) negligent act or omission or willful misconduct; (b) breach of these Standard Terms or violation of applicable Law; (c) misuse or improper installation, storage, maintenance or use of the Products or Services, including failure to implement Software Updates made available to Customer by BuyRexroth or BRR; (d) incorporation of the BRR Products or Software into another product or service; (e) changes, alterations or additions to Products, Software and/or Services; or (e) Customer’s relationship with any end user customer, including any dispute with an end user. Customer will be entitled to control the defense of such claim for which it is providing indemnity to any BRR Indemnified Parties pursuant to this Section 8.4. At Customer’s expense, BuyRexroth and BRR will reasonably cooperate in the defense of the claim, including but not limited to promptly furnishing Customer with all relevant information within its reasonable possession or control. BuyRexroth and BRR may participate in the defense at their own expense and through counsel of their choosing. Customer shall not admit liability or enter into any settlement without the prior written approval of BuyRexroth and BRR.
8.5 LIMITATION ON LIABILITY AND REMEDIES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE STANDARD TERMS AND EXCEPT FOR BRR’ GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: BUYREXROTH, BRR AND THEIR AFFILIATES, AND THEIR RESPECTIVE OWNERS, SHAREHOLDERS, MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, SUBCONTRACTORS, CONTRACTORS, SUCCESSORS AND ASSIGNS SHALL NOT BE LIABLE FOR ANY OF THE FOLLOWING LOSSES OR DAMAGES: EXEMPLARY, SPECIAL, PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, LOST SALES, LOSS OR CORRUPTION OF DATA, LOSS OF PRODUCT USE, LOSS OF BUSINESS, LOSS OF GOODWILL, DOWNTIME COSTS, DAMAGE TO ASSOCIATED EQUIPMENT, LOSS OF REPUTATION, LOSS OF DATA, COST OF SUBSTITUTE GOODS, FACILITIES OR SERVICES, OR CLAIMS OF CUSTOMER’S END USER CUSTOMERS, FOR SUCH DAMAGES OR LOSSES), EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES OR LOSSES WERE FORESEEN, FORESEEABLE, KNOWN OR OTHERWISE AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL BUYREXROTH’S AND BRR’ TOTAL AGGREGATE LIABILITY ARISING OUT OF THESE STANDARD TERMS AND CONDITIONS OF SALE, WHETHER UNDER TORT, CONTRACT, WARRANTY OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER TO BUYREXROTH FOR THE PRODUCT GIVING RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING NOTICE OF THE CLAIM.
THE LIMITATIONS OF LIABILITY CONTAINED IN THESE STANDARD TERMS ARE A FUNDAMENTAL PART OF THE BASIS OF BUYREXROTH’S BARGAIN HEREUNDER AND BUYREXROTH WOULD NOT ENTER INTO THESE STANDARD TERMS AND BRR WOULD NOT EXTEND ITS LIMITED EXPRESS WARRANTY, ABSENT SUCH LIMITATIONS. BuyRexroth and BRR’ rights and remedies set forth herein shall be in addition to any legal or equitable right or remedy available to BuyRexroth and BRR. No waiver of any of BuyRexroth’s and BRR’ rights or remedies shall be effective without BuyRexroth’s and BRR’ express written consent.
9 CONFIDENTIAL INFORMATION.
9.1 Confidentiality Definitions.
Any non-public technical, financial or business information, trade secrets, content, or any other information provided by one Party (the “Disclosing Party”) to the other party (the “Receiving Party”) directly or indirectly, orally or in writing that is: (a) marked confidential or proprietary, or (b) given the nature of the information or the circumstances surrounding its disclosure, reasonably should be deemed confidential (“Confidential Information”) shall be held in confidence by the Receiving Party, not disclosed, and not be used by such Party except to the extent necessary to carry out its obligations or express rights hereunder, except as otherwise authorized by the Disclosing Party in writing. Confidential Information includes, but is not limited to these Standard Terms, Purchase Orders, Quotations, Statements of Work and any other agreements between either BuyRexroth or BRR and Customer relating to, and any information and data concerning the Products Software and Services. The Disclosing Party or its licensors retain all right in such Confidential Information. When applicable, all Specifications accompanying a Quotation are considered confidential to BuyRexroth or BRR, therefore they are to be solely reviewed by personnel of the Customer on a need to know basis, unless otherwise authorized in writing by BuyRexroth or BRR.
The Receiving Party will use Confidential Information only in connection with its performance under these Standard Terms or any Quotation related thereto. The Receiving Party shall use the same degree of care to avoid any disclosure or use of the Confidential Information as it uses for its own confidential, proprietary and trade secret information, but in no case use less than a reasonable degree of care. The Receiving Party agrees to limit disclosure of Confidential Information to employees, contractors or agents and employees, contractors or agents of Affiliates having a specific need to know such Confidential Information in furtherance of its performance under these Standard Terms.
The confidentiality obligations under this Section 9 do not apply to any information that: (a) is generally known, or readily ascertainable by proper means, by the public other than through the Receiving Party’s fault; (b) was known by or in the possession of the Receiving Party or its Affiliate at the time of disclosure as shown by the Receiving Party’s and/or its Affiliates’ files and records prior to the time of disclosure, other than as a result of any improper act or omission of the Receiving Party or its Affiliate; (c) is rightly received by the Receiving Party from a third-party not subject to any nondisclosure obligations with respect to the Confidential Information; or (d) is independently developed by an employee, agent or consultant of the Receiving Party or its Affiliates without reference to or use of the Disclosing Party’s Confidential Information.
9.4 Compelled Disclosure.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent it is requested, ordered or required by a regulatory agency or any other government authority or a court to do so; provided the Receiving Party promptly notifies the Disclosing Party of such request, order or requirement (to the extent legally permitted) and provides reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party shall reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information. If such protective order or other remedy is not obtained, the Receiving Party shall furnish only that portion of the Confidential Information that is legally required and use commercially reasonable efforts to obtain assurance that confidential treatment shall be accorded the Confidential Information.
9.5 Reproduction and Return of Confidential Information.
The Confidential Information provided by the Disclosing Party shall not be copied or reproduced without the Disclosing Party’s prior written consent, except for such copies as may reasonably be required by the Receiving Party for its performance of its obligations under these Standard Terms. Upon the Disclosing Party’s request, the Receiving Party shall promptly return to the Disclosing Party (or its designees) all Confidential Information received from the Disclosing Party or certify that it has destroyed all Confidential Information, in whatever form, including written or electronically recorded information and all copies thereof (other than copies retained in automatic back-up and archive systems). Notwithstanding the foregoing, the Receiving Party shall be entitled to retain one copy of the Confidential Information with its legal counsel or other appropriate corporate representative to evidence the exchange of information hereunder and in connection with legal or statutory requirements. All such retained copies shall be subject to the use and disclosure restrictions set forth in this Section 9 of these Standard Terms for so long as the Confidential Information is retained.
10. MISCELLANEOUS PROVISIONS.
10.1 Posting Through BuyRexroth Website.
BRR may modify these Standard Terms from time to time by posting revised Standard Terms to the Website. Such Updated Standard Terms shall apply to all Purchase Order or Quotation revisions/amendments and new Purchase Orders or Quotations issued on or after the effective date of such Updated Standard Terms.
No waiver of any of provisions of these Standard Terms shall be effective unless agreed to in writing signed by BuyRexroth. No oral agreement, course of performance or other means other than such written agreement signed by both parties expressly providing for such waiver shall be deemed to waive any provision of these Standard Terms.
10.3 Compliance with Applicable Law.
Each Party shall, at its sole cost and expense, comply with all applicable Laws and other requirements relating to or affecting these Standard Terms, the Products and Services (including their sale, transfer, handling, storage, use, disposal, export, re-export and transshipment) and Software.
10.4 Interpretation and Headings.
No provision may be construed against BuyRexroth or BRR as the drafting Party. Section headings are for convenience or reference only and will not affect the meaning or interpretation of these Standard Terms.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and, for (a) Notices sent to BuyRexroth, addressed to ____________________; (b) Notices sent to BRR, addressed to BUYREXROTH LLC, 14001 South Lakes Drive, Charlotte NC 28272, Attention: Customer Service, and (c) Notices sent to Customer, addressed to the address set forth for the Customer in the user information provided to the Website, in each case as such address may be updated from time to time by the receiving Party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Standard Terms, a Notice is effective only (x) upon receipt of the receiving party, and (y) if the party giving the Notice has complied with the requirements of this Section 10.5.
10.6 Force Majeure.
In the event either Party is unable to fully perform its obligations hereunder (except for Customer's obligation to pay for Products or Services ordered) due to events beyond its reasonable control, that by their nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including but not limited to labor strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), acts of God, pandemic, action by any governmental authority (whether valid or invalid), fires, floods, windstorms, earthquakes, natural disasters, tariffs, embargoes, explosions, riots, acts of terrorism or sabotage, malicious damage, wars, electronic viruses, worms or corrupting microcode, or court injunction or order, shortage of supply or delay in delivery by BRR’ vendors, breakdown of plant or machinery, default of suppliers or sub-contractors, inability to obtain or secure: power, material, labor, transportation and equipment (collectively, “Force Majeure Event”), that Party shall be relieved of its obligations to the extent it is unable to perform. Timely notice of such inability to perform shall be given to the other Party.
Neither Party may assign any rights or obligations hereunder without the prior written consent of the other Party, which consent will not be unreasonably withheld or delayed. An internal corporate reorganization, which does not result in a change of control or beneficial owner, shall not be deemed an assignment under this provision.
10.8 Relationship of the Parties.
Customer and BuyRexroth are independent contracting Parties and nothing hereunder or in the course of performance of these Standard Terms shall grant either Party the authority to create or assume an obligation on behalf or in the name of the other Party, or shall be deemed to create the relationship of agency, joint venture, partnership, association or employment between the Parties.
In the event that any provision or portion of a provision herein is determined to be illegal, invalid, or unenforceable by a court of competent jurisdiction or by an arbitration panel in accordance with Section 10.10 below, the validity and enforceability of the remaining provisions shall not be affected, and in lieu of such provision, a provision similar in terms as is legal, valid and enforceable shall be added hereto.
10.10 Dispute Resolution; Governing Law.
These Standard Terms, the Quotation, Statement of Work and/or Purchase Order and all disputes between the Parties and disputes between the Customer and BRR relating to any obligation of BRR as to any BRR Product, Software and/or Service, arising out of or related thereto shall be governed by the laws of the State of Michigan except for its choice of law rules; the United Nations Convention on the International Sale of Goods shall not apply. BuyRexroth and Customer acknowledge that these Standard Terms, the Quotation, Statement of Work and/or Purchase Order evidence a transaction involving interstate commerce. BuyRexroth and Customer shall first endeavor to resolve through good faith negotiations any dispute arising under or related to these Standard Terms or with respect to the Products, Software or Services. If a dispute cannot be resolved through good faith negotiations within thirty (30) days, either Party may request non-binding mediation by a mediator approved by both Parties. If mediation fails to resolve the dispute within thirty (30) days after the first mediation session, then, upon notice by either Party to the other, any and all disputes, controversies, differences, or claims arising out of or relating to these Standard Terms (including the formation, existence, validity, interpretation (including of this Arbitration clause), breach or termination thereof) or the Products, Software Services shall be resolved exclusively through binding arbitration, except that either Party shall have the right, at its option, to seek injunctive relief, under seal to maintain confidentiality to the extent permitted by Law, (i) in either the Michigan Circuit Court for the County of Oakland or the United States Court for the Eastern District of Michigan, or (ii) pursuant to the American Arbitration Association Optional Rules for Emergency Measures of Protection. A request by a Party to a court of competent jurisdiction for such interim measures shall not be deemed incompatible with, or a waiver of, this agreement to arbitrate. The Parties agree that any ruling by the arbitration tribunal on interim measures shall be deemed to be a final award for purposes of enforcement. The arbitration proceedings shall be conducted in accordance with the Commercial Arbitration Rules of the AAA including application of the Optional Rules for Emergency Measures of Protection as amended from time to time, except as modified by this clause or by mutual agreement of the Parties, and shall be governed by the United States Federal Arbitration Act. Within fourteen (14) days after the commencement of arbitration, each Party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within ten (10) business days of their appointment. If the arbitrators selected by the Parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the AAA. The arbitration shall be conducted in Detroit, Michigan, and the language of the arbitration shall be English. The arbitrators’ award shall be final and binding. The arbitrators shall issue a written opinion setting forth the basis for the arbitrators’ decision. The written opinion may be issued separately from the award by the arbitrators where necessary to preserve confidentiality. Each Party shall bear its own fees and costs, and each Party shall bear one half the cost of the arbitration hearing fees, and the cost of the arbitrator, unless the arbitrators find the claims to have been frivolous or harassing. A Party may apply to have the arbitration award confirmed and a court judgment entered upon it. Venue for confirmation of or any challenge to the Arbitration Award shall be in either the Michigan Circuit Court for the County of Oakland or the United States Court for the Eastern District of Michigan and shall be done under seal to maintain confidentiality to the maximum extent permitted by law. The arbitrators shall have no authority to award punitive damages or any other damages excluded herein, to the maximum extent permitted by law. Except as may be required by Law, neither a Party, its counsel, nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both Parties.
10.11 Limitation Period.
Except as provided in this Section 10.11, all claims must be made within the period specified by applicable Law. If the law allows the Parties to specify a shorter period for bringing claims, or the law does not provide a time at all, the claims must be made within eighteen (18) months after the cause of action accrues.
10.12 Export Control.
Activities undertaken by either Party pursuant to these Standard Terms shall at all times be consistent with all import and export and national security laws or regulations of the United States and any applicable foreign agency or authority. Neither Party shall import, export or re-export, or authorize the export or re-export of any product, technology, or information that it obtains or learns hereunder, or any copy or direct product thereof, in violation of any of such laws or regulations without the required license or approvals required thereunder.
10.13 Government Contracts.
If Products or Services are purchased under a government contract or sub-contract, Customer shall promptly notify BuyRexroth of the provisions of any government procurement laws and regulations which are required to be included in the contract covering the Products or Services ordered, which BuyRexroth must agree upon in writing. If compliance with such provisions increase BuyRexroth’s’ costs or liability, or encumbers any BRR Intellectual Property Rights, BuyRexroth shall be entitled, at its option, to adjust the prices accordingly, request separate payment of the additional costs, or terminate these Standard Terms and/or the applicable Order, in which case Customer shall be responsible for all costs incurred by BuyRexroth prior to such termination. Subject to the provisions of this Section 10.13, BuyRexroth represents that its performance hereunder is in compliance with the following provisions, as applicable and as may be amended from time to time (and same are incorporated herein by reference):
10.13.1 The Fair Labor Standards Act,
10.13.2 Executive Order 11246, including section 202,
10.13.3 The Vietnam Era Veterans Readjustment Assistance Act of 1974,
10.13.4 Worker’s Compensation, and
10.13.5 The Rehabilitation Act of 1973.
10.14 Entire Agreement.
These Standard Terms and all other agreements incorporating these Standard Terms constitute the sole and entire agreement under which BuyRexroth will sell and Customer will purchase the Products, Software and Services. Terms and conditions proposed by Customer that are different from or in addition to the provisions of these Standard Terms are hereby expressly rejected by BuyRexroth and are not a part of these Standard Terms, any Order or accepted Quotation, Statement of Work and Customer’s acceptance is expressly limited to the terms of this Standard Terms. These Standard Terms and all other agreements incorporating these Standard Terms constitute the entire agreement between BuyRexroth and Customer with respect to the matters contained herein/therein and supersede all prior or contemporaneous oral or written agreements, representations and/or communications. These Standard Terms may be modified only by an amendment issued and signed by an authorized representative of BuyRexroth.