Terms and Conditions of Sale

Last updated: May 17, 2021

1. ACCEPTANCE; ENTIRE AGREEMENT:

These Terms and Conditions of Sale (“T&C”) are attached to and incorporated into any purchase order or other order submitted by Buyer (“Order”). These T&C form part of the Order and, together, they govern any and all sales by Cleo Robotics, Inc. or its subsidiaries or affiliates (hereinafter collectively referred to as “Seller”) of any and all products (collectively, “Product”). Seller will deliver the Product in accordance with these T&C; and Buyer’s purchase and acceptance of the Product is strictly conditioned upon and subject to these T&C. Any new, different, additional or other terms and conditions in Buyer's purchase order, proposal, payment enclosure, acknowledgement or any other writing (as applicable) are hereby rejected and are null and void except as expressly agreed upon in writing in the Order and signed by both parties. No changes, additions or modifications of any of the provisions herein will be of any force or effect unless made in writing and executed by Seller. The Order, including these T&C, comprises the entire agreement between the parties and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations, warranties and communications, both written and oral. Fulfillment of Buyer's Order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these T&C. By issuing an Order for any Product, Buyer certifies that Buyer is authorized to enter into the Order, and agrees to all of the terms contained herein.

2. CHANGES

Once an Order is placed with Seller, the Order cannot be cancelled, and Buyer will not have the right to make changes to the Order unless specifically agreed to by Seller in writing. If such changes agreed to by Seller cause an increase in Seller's costs or time of performance of the Order, Seller will notify Buyer and the price will be adjusted to account for such increases.

3. PRICE; TAXES

Buyer will pay the price for the Product as indicated in the Order, including any applicable federal, state, or local taxes.

4. PAYMENT TERMS; INVOICES

Once an Order is submitted by Buyer, Seller has two business days to acknowledge the Order. If the Order is not acknowledged by Seller within such period, then the Order is presumed to be denied. The Buyer may cancel the Order any time up until it has been acknowledged by the Seller. Seller will invoice Buyer upon shipment; provided that Seller reserves the right to charge Buyer a deposit prior to shipping. Seller will send all invoices to Buyer at the address indicated on the face of the Order. Except as otherwise set forth in the Order, Buyer will pay all invoices within thirty (30) days of receipt thereof. Seller reserves the right to charge interest on any late invoices in the amount of the lesser of 1.5% per month (18% per annum) of the unpaid amount, or the maximum non-usurious amount permitted by applicable law. Buyer will have no right of set off or recoupment with respect to invoices submitted by Seller pursuant to this Order or any other order. Buyer understands and agrees that Seller reserves the right to recover attorney’s fees and court costs in the event Seller has to engage counsel or commence any legal action to enforce any of Seller’s rights under the Order or these T&C, including the right to receive payment for the Order. All listed prices and specifications are subject to change by Seller at any time without notice. Seller reserves the right to refuse or cancel any Order, including for Products listed at the incorrect price, or for Orders in which the total has been calculated incorrectly, or for any other Order which Seller cannot fulfill, whether or not the Order has been acknowledged or confirmed and whether or not Buyer has paid or been charged. If Buyer has already paid for an Order that is cancelled, Seller shall issue a credit to Buyer’s original form of payment. SELLER RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS PRICES AND BILLING METHODS FOR PRODUCTS SOLD, EFFECTIVE IMMEDIATELY FOR ANY ORDERS SUBMITTED AFTER SUCH CHANGE.

5. SHIPMENT AND DELIVERY

Shipment and delivery shall be as set forth in the Order. All shipment costs will be listed as separate line items on the invoice, and will be paid for by Buyer. Seller shall make commercially reasonable efforts to assist Buyer with any problems related to the delivery of the Products and to report any delays in shipment to Buyer; but Buyer understands and acknowledges that delivery dates are estimated and Seller will not be liable for any damages or other claims resulting from delays in shipment or delivery. COSMETIC DAMAGE INCLUDING SMALL RUBS, BLEMISHES, OR OTHER MARKS CAN OCCASIONALLY OCCUR DURING SHIPPING. BUYER AGREES TO ACCEPT ALL PRODUCTS WITH SUCH COSMETIC DAMAGE “AS IS”; AND SELLER’S TECHNICAL SUPPORT WILL ASSIST BUYER IN ADDRESSING ANY MANUFACTURING, IN ACCORDANCE WITH THE LIMITED WARRANTY SET FORTH BELOW.

6. INSPECTION AND NONCONFORMING PRODUCT

Buyer must thoroughly inspect the shipment within three business days of delivery for obvious shipping damage or other Product defects. If obvious shipping damage exists on delivery, Buyer shall ensure that the carrier notes the damage before departing. If Buyer receives a Product with shipping damage or which is otherwise defective upon shipment, then Buyer must file a claim with Seller within three business days of delivery or such claims are waived. Except for claims under the Limited Warranty, Buyer shall be deemed to accept “as is” all Product after three business days of delivery. If Buyer makes a claim for shipping damage or other patent Product defect within three business days of delivery, then Seller shall in its discretion, as Buyer’s sole and exclusive remedy and Seller’s sole and exclusive liability, either replace the damaged or patent defective Product or refund Buyer the purchase price paid with respect thereto.

7. TITLE AND RISK OF LOSS

Title to the Products, as well as risk of loss of damage thereto during transit, will pass to Buyer upon delivery.

8. WARRANTY; DISCLAIMER

Seller warrants to the original Buyer that, for a period of twelve (12) months from the date of shipment of the Product, the Product will be free from material defects in material and workmanship. If Buyer notifies Seller of a warranty defect within the Warranty Period, then as Buyer’s sole and exclusive remedy and Seller’s sole and exclusive liability, Seller shall (in Seller’s sole discretion) either replace the defective Product or refund Buyer the purchase price paid with respect thereto The remedies set forth herein are available only to the original purchaser of the Product; and Seller may require proof of purchase in its discretion. SELLER DOES NOT WARRANT THE PRODUCTS AGAINST NORMAL WEAR AND TEAR, UNAUTHORIZED MODIFICATIONS OR IMPROPER USE OR MAINTENANCE. THE PRODUCTS ARE NOT DESIGNED TO BE INHERENTLY FAIL-SAFE, NOR ARE THEY DESIGNED FOR USE IN ANY HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE. EXCEPT AS SET FORTH HEREIN, SELLER MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, NON-INFRINGEMENT, WHETHER BASED ON CUSTOM, COURSE OF PERFORMANCE OR INDUSTRY STANDARD AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED. SELLER FURTHER DISCLAIMS ANY AND ALL WARRANTIES THAT THE PRODUCT WILL PERFORM IN ANY CERTAIN MANNER OR ACHIEVE ANY PARTICULAR RESULTS.

9. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE ORDER OR THE PRODUCT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID FOR THE PRODUCT WITH RESPECT TO WHICH THE CLAIM RELATES. IN NO EVENT SHALL SELLER OR ITS AFFILIATES, LICENSORS OR VENDORS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, REVENUES, USE, GOODWILL OR BUSINESS OPPORTUNITY, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THE PRODUCT OR THE ORDER, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

10. INDEMNITY

Buyer will indemnify, defend and hold harmless Seller and its affiliates and vendors and their respective officers, directors, equity holders, employees, agents and representatives harmless from and against any and all suits, claims, liabilities, damages, losses, fees, fines, penalties, costs and expenses (including attorney's fees, expert witness fees, court costs and interest) and including those related to death, personal injury or damage to property, arising out of or in connection with (a) any loss or damage resulting from the Products and the handling, storage, operation, use, modification, maintenance or repair thereof (except to the extent solely attributable to the negligence of Seller), (b) any loss, injury or damage arising from the non-compliance with any and all Applicable Laws, and (c) Buyer’s breach of these T&C. Seller reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Buyer, in which event Buyer will cooperate with Seller in asserting any available defenses.

11. COMPLIANCE WITH LAWS

Both parties, in the performance of the Order, will comply with any and all applicable international, federal, state, and local laws, regulations, rules and ordinances (“Applicable Law”). It is the responsibility of Buyer, not Seller, to ascertain and obey all Applicable Laws in regards to the possession and use of the Product. Buyer should consult its, his or her local, state and country laws before ordering and using Products. By placing an Order, Buyer represents that the Product ordered will be used in a lawful manner. Under no circumstances shall Seller, its affiliates, vendors or licensors be liable or responsible for the use of any Product purchased. These terms are effective and binding upon the Buyer’s heirs, agents, personal representatives and assigns. If Buyer is an individual, Buyer represents, warrants and covenants that that he/she is over 18 years of age. Buyer further agrees that by purchasing Products, placing an Order, or sending payment for Products, Buyer assumes all risks and waives and releases certain substantial rights that Buyer may have or possess (as set forth in these T&C).

12. BUYER’S RESPONSIBILITIES

Buyer warrants and agrees that Buyer will use the Products in accordance with their proper use, and in a safe manner in line with the intended and instructed use of the Products. Except as authorized in writing by Seller, Buyer may not: (a) resell the Product as part of any business or commercial enterprise; (b) copy, modify or create any derivative works of the Product; (c) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to any element of the Product, except to the extent expressly permitted by applicable law and then only with advance notice to Seller; (d) remove, obscure or deface any proprietary or other notices in or on the Product; (e) access the Product for the purpose of building a competitive product or service or copying its features or user interface; or (f) publish or make public any performance results from the Product unless such results are made public in an anonymized form that cannot be linked to Seller or the Product.

13. PRODUCT RECALLS

In the event of any mandatory recall, or if Seller believes that it may be necessary to conduct a recall, field correction, market withdrawal, stock recovery, or other similar action with respect to any Product (a “Recall”), Seller shall have sole authority with respect to such Recall (including the sole right to control any communications regarding thereto). In the event of any Recall, Buyer shall immediately cease using and operating the affected Products.

14. ASSIGNMENT

Neither the Order, these T&Cs, nor any right, obligation or interest therein, nor any claim arising hereunder, may be transferred or assigned by Buyer. The Order and these T&Cs will be binding upon and inure to the benefit of the respective permitted successors and assigns, and any attempted transfer made in violation of these T&C will be null and void.

15. GOVERNING LAW; VENUE

The Order, including these T&C and any dispute regarding these T&C and/or the Product, and the rights and obligations of the parties thereto, will be determined in accordance with the laws of the Commonwealth of Massachusetts without reference or regard to the conflicts of law rules thereof. The United Nations Convention on the International Sale of Goods shall not apply and the parties hereby expressly reject its applicability. Any legal suit, action or proceeding arising out of or relating to the Order shall be held exclusively in the federal and state courts located in the Commonwealth of Massachusetts, in each case located in or near the City of Boston and County of Suffolk, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO TRIAL BY JURY.

16. FORCE MAJEURE

Seller shall not be liable or be deemed to have breached the Order, for any failure or delay in fulfilling or performing any term of the Order when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, tornado, hurricane, explosion, pandemic (including COVID-19), epidemic, governmental actions, voluntary or involuntary compliance with any governmental order or mandate, war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, insurrection, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or vendors, or inability or delay in obtaining supplies of adequate or suitable materials, equipment or telecommunication breakdown or power outage. During any period in which Seller’s supply is low, Seller may allocate any available Product in any manner deemed reasonable to Seller; and under no circumstances shall Seller be obligated to ship by expedited or any other means (other than as set forth herein), work overtime, or ship from any specific location in order to fill an Order.

17. MISCELLANEOUS

These T&C and any Order may only be amended in a writing which specifically states that it amends the Order and is signed by an authorized representative of each party. No waiver by Seller of any of the provisions of the Order is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any rights or remedies arising from the Order may be construed as a waiver thereof. No single or partial exercise of any right or remedy hereunder precludes any other or further exercise thereof or the exercise of any other right or remedy. Nothing contained herein shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. The Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein shall confer upon any other person or entity any legal or equitable right or remedy of any nature whatsoever. If any term or provision of the Order or these T&Cs are invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Order or these T&C, or invalidate or render unenforceable such term or provision in any other jurisdiction. Provisions of these T&C which by their nature should apply beyond their terms will remain in force after any termination or expiration of the Order.