Terms and Conditions

1. Terms & Conditions - These Terms and Conditions apply to any agreement between MVS and Purchaser as identified in any Purchase Obligation (defined below), contract or agreement between MVS and the Purchaser.  No waiver, alteration or modification of, or additions to the terms and conditions contained herein and/or in any Purchase Obligation shall be binding upon MVS unless expressly agreed to in writing by a duly authorized representative of MVS. Some or all of the Equipment and/or Software furnished or made available under any Purchase Obligation or EULA (as those terms are defined below) is made available by MVS, in whole or in part, under a license from Carnegie Mellon University (“Carnegie Mellon”).  As a result, Carnegie Mellon is an express third-party beneficiary of these Terms and Conditions.

‍

2. Definitions - when used herein: (i) “EULA” means an end user license agreement granting Purchaser the right and license to access and use the Software covered by the EULA; (ii) “Equipment” means 3D mapping sensors, power supplies, cabling, shipping cases, developer kits, mounts and other equipment, parts, materials, or services provided by MVS, including, without limitation, those described on any Purchase Obligation; (iii) “MVS” means Mine Vision Systems, Inc., a Delaware corporation; (iv) “Purchase Obligation” means a Quote that has been accepted by a Purchaser as evidenced by Purchaser’s signature on the Quote; (v) “Purchaser” means a person, firm or corporation acquiring Equipment and/or Software from MVS; (vi) “Quote” means a document listing, among other things, Equipment and Software to be purchased or licensed (as appropriate) by a Purchaser, and includes the price, terms and conditions of such purchase and/or license; and (vii) “Software” means the computer software licensed to Purchaser under an EULA (including any new release or updated version), together with all associated media, printed materials, and any related User Materials (as defined in the EULA).

‍

3. Acceptance – A Quote will be deemed accepted and will become a Purchase Obligation upon execution by Purchaser.  Such acceptance shall be deemed to constitute Purchaser’s acceptance of and agreement to be bound by the terms of the Purchase Obligation, and these Terms and Conditions.

‍

4. Price – Unless otherwise specified, the price of Equipment, Software or services ordered will be the prices reflected on the Purchase Obligation in question.  Unless the Purchase Obligation in question expressly provides otherwise, MVS’s prices do not include freight or shipping charges, or goods and services, sales, use, or other taxes.  Freight and shipping charges will be billed separately to Purchaser.  Likewise, all taxes will be billed separately to Purchaser, unless Purchaser provides MVS with a valid tax exemption certificate acceptable to MVS and the appropriate taxing authorities.

‍

5. Delivery – Terms of Delivery will be EXW (as that term is defined in Incoterms 2010) MVS’s Manufacturer, unless otherwise specified on the Purchase Obligation in questions.  It is expressly agreed that time is not of the essence.  Accordingly, delivery dates, if shown on a Purchase Obligation, are approximate from the date of receipt of a Purchase Obligation according to the terms herein contained, including full information received at MVS’s office.  MVS shall not be responsible for reasonable or Excusable Delays, nor shall Purchaser refuse to accept delivery because of such Excusable Delays.  “Excusable Delays” include delays resulting from accidents, acts of God, strikes or other labor difficulties, government controls, or other forms of intervention, inability to obtain Equipment, labor, materials, utilities or services, or other causes beyond MVS’s control.  Availability of Equipment is subject to prior sale.

‍

6. Warranty –

A. MVS warrants that all Equipment manufactured, sold and/or repaired by MVS will meet MVS’s written specifications and will be free from defects in materials and workmanship.  MVS’s obligation under this warranty shall be limited to repairing or replacing any Equipment, or components or parts thereof, found by MVS to be defective and for which MVS has received written notice within one (1) year after the date of shipment, with the exception of: (i) items manufactured by anyone other than MVS, which are warranted only by and to the extent of the original manufacturer’s warranty to MVS and are not warranted by MVS; and (ii) Software which is warranted under and in accordance with the provisions of the applicable EULA pursuant to which Purchaser has acquired the right and license to use the Software.  This warranty does not apply to any Equipment or component parts thereof which have been repaired or altered by anyone other than MVS, or that have become damaged due to neglect, misuse or negligence, or that have not been operated or maintained according to MVS’s printed instructions and/or warnings, whether such instruction and/or warnings are provided with the Equipment or services in question, or made available to Purchaser on MVS’s website at www.minevisionsystems.com.  This warranty is expressly in lieu of all other warranties, expressed or implied.  The remedies hereunder are the exclusive and sole remedies available to Purchaser, and all claims for damages of any kind or nature shall at all times and under all circumstances be subject to the provisions of paragraph 8 below.  Purchaser waives the benefit of any rule that the disclaimer of warranty shall be construed against MVS and agrees that such disclaimers herein shall be construed liberally in favor of MVS.

‍

B. Once MVS determines that Equipment or component parts thereof are covered by MVS’s warranty, MVS shall replace or repair the Equipment or component parts thereof in question subject to the following:

1. Transportation charges incurred in conjunction with the return of Equipment or component parts thereof for repair or replacement under the foregoing warranty (“Transportation Charges”) are the sole responsibility of the Purchaser unless stated differently in MVS’s warranty policy; and
2. Equipment or component parts thereof shall not be returned under the foregoing warranty unless and until the Purchaser obtains from MVS a Return Merchandise Authorization (“RMA”), which RMA shall: (a) identify the location to which the Equipment or component parts thereof shall be returned; and (b) identify the transportation method to be used to return the Equipment or component parts thereof, which transportation method shall be determined by MVS in its sole discretion; and
3. Under no circumstances will MVS be responsible for or pay: (a) any costs or expenses associated with expediting repair or replacement of the Equipment or component parts; or (b) import fees or expenses; or (c) goods and services, sales, use or other taxes; or (d) any other costs, fees or expenses over and above the Transportation Charges associated with MVS’s transportation method identified in the RMA for which MVS is obligated to pay under MVS’s warranty policy, if any.

C. CARNEGIE MELLON MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, AS TO ANY MATTER INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, EXCLUSIVITY OR RESULTS OBTAINED FROM USE OF ANY EQUIPMENT AND/OR SOFTWARE. FURTHER, CARNEGIE MELLON MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO FREEDOM FROM PATENT, TRADEMARK, OR COPYRIGHT INFRINGEMENT, OR THEFT OF TRADE SECRETS AND DOES NOT ASSUME ANY LIABILITY HEREUNDER OR OTHERWISE FOR ANY INFRINGEMENT OF ANY PATENT, TRADEMARK, OR COPYRIGHT ARISING FROM THE USE OF ANY EQUIPMENT AND/OR SOFTWARE.

‍

7. Governing Laws; Disputes – Interpretation of these Terms and Conditions, including the definitions contained herein, and the rights of parties arising out of these Terms and Conditions or the accompanying Purchase Obligation, shall be construed under the laws of the Commonwealth of Pennsylvania, U.S.A. All disputes between the MVS and Purchaser will be resolved exclusively in the Commonwealth of Pennsylvania by either arbitration or court action at the option of MVS. Should MVS retain counsel to resolve a payment dispute or any other dispute between the MVS and Purchaser, Purchaser shall pay MVS’s attorney fees, costs and other expenses associated with the dispute.

‍

8. Damages –

A. In no event shall MVS be liable for special, consequential, or incidental damages including, but not limited to, loss of anticipated profits or loss of any equipment, installation, system, operation or service into which the Equipment, or any equipment, parts or materials, may be put or the services performed. This limitation on MVS’s liability shall apply to any liabilities for default under or in connection with the Equipment and services delivered under any Purchase Obligation whether based on warranty, failure of or delay in delivery or otherwise. Any action seeking damages (other than Warranty claims under Section 6 above), including for breach of contract and any other cause of action must be commenced within one (1) year after the date of delivery to Purchaser.

B. CARNEGIE MELLON SHALL NOT BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR ANY REASON WHATSOEVER ARISING OUT OF OR RELATING TO ANY PURCHASE OBLIGATION OR EULA, INCLUDING ANY OF THE EQUIPMENT AND/OR SOFTWARE FURNISHED OR MADE AVAILABLE UNDER THE SAME, FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES SUCH AS LOSS OF PROFITS OR INABILITY TO USE SAID EQUIPMENT AND/OR SOFTWARE, OR DERIVATIONS THEREOF, EVEN IF CARNEGIE MELLON AND/OR ANY OF ITS LICENSEES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

‍

9. Payment Terms –

A. Unless Purchaser and MVS agree otherwise in writing at the time the Purchase Obligation is placed by Purchaser with MVS, the total invoice amount is due and payable to MVS within thirty (30) days of the invoice date.

B. Any payment of an invoice not received when due shall bear interest thereon at the rate of one and one half percent (1-1/2 %) per month on the unpaid balance until paid in full.

‍

10. Title to Equipment; Security Interest – By accepting delivery of any Equipment, and until such time as all sums due and owing to MVS for such Equipment are paid in full, Purchaser shall be deemed to and hereby does transfer, assign and grant to MVS a security interest in such Equipment, and further agrees that Purchaser will, at its expense, take or cause to be taken such action and will execute and deliver or cause to be executed and delivered such other agreements and documents which MVS may from time to time request for the purpose of protecting, enforcing, perfecting and maintaining MVS’s security interest in such Equipment and its rights under these Terms and Conditions, including, without limitation, placing on such Equipment labels or plates as specified by MVS advising of MVS’s security interest in such Equipment, and executing and filing financing and other statements under the Uniform Commercial Code (or similar provision of law) in any jurisdiction. Purchaser further authorizes MVS to sign and file any such statement on its behalf or to file any such statement without its signature. Any of the following shall constitute an Event of Default: (i) failure by Purchaser to pay any amount due and owing by Purchaser for the Equipment when due; (ii) failure by Purchaser to perform any of its other obligations under any agreement between Purchaser and MVS in accordance with the terms of such agreement; or (iii) the occurrence of any other default under any agreement between Purchaser and MVS. Upon the occurrence of an Event of Default, MVS will have the rights, options, duties and remedies of a secured party, and Purchaser will have the rights and duties of a debtor, under the Uniform Commercial Code (regardless of whether such Code or a law similar thereto has been enacted in a jurisdiction wherein the rights or remedies are asserted) and, without limiting the foregoing, MVS may exercise one or more of the following remedies: (a) declare the entire unpaid sum then due and owing by Purchaser to MVS or such lesser amount as may be set by law immediately due and payable with respect to any or all Equipment without notice or demand to Purchaser; (b) sue from time to time for and recover all installment payments and other payments then accrued and which accrue during the pendency of such action with respect to any or all Equipment; (c) take possession of and, if deemed appropriate, render unusable any or all Equipment, without demand or notice, wherever same may be located, without any court order or other process of law and without liability for any damages occasioned by such taking of possession and remove, keep and store the same or use and operate or lease the same until sold; (d) require Purchaser to assemble any or all Equipment at any location designated by MVS; (e) upon ten (10) days’ notice to Purchaser or such other notice as may be required by law, sell or otherwise dispose of any Equipment, whether or not in MVS’s possession, in a commercially reasonable manner at public or private sale at any place deemed appropriate and apply the proceeds of such sale, after deducting all costs of such sale, including, but not limited to, legal fees, costs of transportation, repossession, storage, refurbishing, advertising and brokers’ fees, to the obligations of Purchaser to MVS, with Purchaser remaining liable for any deficiency and with any excess being returned to Purchaser; (f) upon thirty (30) days’ notice to Purchaser, retain any repossessed or assembled Equipment as MVS’s own property in full satisfaction of Purchaser’s liability for the installment payments due with respect thereto, provided that Purchaser will have the right to redeem such Equipment by payment in full of its obligations to MVS or to require MVS to sell or otherwise dispose of such Equipment in the manner set forth in subparagraph (e) hereinabove upon notice to MVS within such thirty (30) day period; or (g) utilize any other remedy available to MVS under the Uniform Commercial Code or similar provision of law or otherwise at law or in equity. No right or remedy conferred herein is exclusive of any other right or remedy conferred herein or by law; but all such remedies are cumulative of every other right or remedy conferred hereunder or at law or in equity, by statute or otherwise, and may be exercised concurrently or separately from time to time. Any sale contemplated by subparagraph (e) above may be adjourned from time to time by announcement at the time and place appointed for such sale, or for any such adjourned sale, without further published notice, MVS may bid and become the purchaser at any such sale. Any sale of any Equipment, whether under said subparagraph or by virtue of judicial proceedings, will operate to divest all right, title, interest, claim and demand whatsoever, either at law or in equity, of Purchaser in and to said Equipment and will be a perpetual bar to any claim against such Equipment, both at law and in equity, by Purchaser and all persons claiming by, through or under Purchaser. MVS will release its security interest in such Equipment when Purchaser has paid to MVS all sums due and owing for such Equipment and Purchaser has otherwise satisfied all obligations to MVS related thereto.

‍

11. Use of MVS’s Name and other Marks – MVS reserves all rights with respect to its name and all trademarks, service marks, logos, trade names, trade dress and other indicia related to MVS and/or the Equipment (collectively the “Marks”), and must approve, in advance and in writing, any use thereof. Any unauthorized use of any MVS-owned Mark, or any use of a mark that is confusingly similar to, or likely to cause confusion with, a MVS-owned Mark, would constitute infringement of MVS’s exclusive trademark rights and is expressly prohibited. Likewise, use of MVS’s Marks within other companies’ names, service names, company/trade names, DBA’s, domain names or other indicia is strictly prohibited. Purchaser may, in some instances and with MVS’s advance written consent, make purely referential use of MVS-owned Marks. Such referential uses of MVS-owned Marks must only be made in plain text, and use of product logos or box designs is NOT allowed without a written license from MVS. Plain text use of MVS’s Marks in commercial contexts may only be made for purposes like describing the Equipment, or ability to train others on the use of the Equipment, or true, factual statements as to the nature of any relationship with MVS, where one exists. Any use of MVS’s Marks or of statements that imply endorsement, affiliation, certification or other relationship – where none exist – are strictly prohibited. Purchaser will not remove or destroy any tag, label, imprint, sign, banner, or other identifying information MVS attaches to the Equipment or component parts thereof, including, but not limited to, any patent or trademark notices, which tags, labels, imprints, signs and/or banners shall also comply with all applicable federal, state and/or local laws, standards and regulations. As a condition to approval of a proposed referential use of a Mark by Purchaser MVS may require Purchaser to include the proper trademark symbol(s), and may further require Purchaser to provide a short ownership attribution statement indicating that the Mark in question is a trademark or service mark of MVS. Purchaser further acknowledges that it does not have any rights or any title whatsoever in or to Carnegie Mellon’s trade name or in or to any of Carnegie Mellon’s trademarks. Purchaser shall neither register nor use any Carnegie Mellon trade name or trademark for any purpose.

‍

12. Controlling terms – In the event of conflict between these Terms and Conditions and those of any Purchase Obligation or separate purchase order issued by Purchaser, these Terms and Conditions shall govern and Purchaser’s terms and conditions shall be of no force and effect.

‍

13. Engineering – MVS’s Equipment and Software is highly engineered and constantly subject to engineering refinement and improvement. Of necessity, therefore, MVS reserves the right to change the affected part or version numbers and prices at any time without notice to Purchaser.

‍

14. Cancellation and Returns – Unless Purchaser and MVS agree otherwise in writing: (i) no Purchase Obligation may be cancelled or returned in whole or in part without MVS’s written consent, and payment of reasonable charges; (ii) any Equipment or Software returned to MVS will be subject to a restocking charge not to exceed one hundred percent (100%) of the invoice price; (iii) transportation charges incurred in conjunction with the return of Equipment or component parts thereof upon cancellation of a Purchase Obligation are the sole responsibility of the Purchaser; and (iv) credits for returned Equipment will not be issued until such Equipment has been received at MVS’s specified location, inspected and deemed resalable as in its original manufactured condition, and MVS has determined, to its reasonable satisfaction, that all transportation charges associated with such return have been paid in full by Purchaser.

‍

15. Protection of Intellectual Property –

A. Nondisclosure of Confidential Information. Understanding that in its acquisition, proper maintenance and use of the Equipment and Software, Purchaser shall acquire knowledge of MVS’s proprietary and confidential information, including without limitation the design, specifications and operation of the Equipment and Software, and other information embodied therein or relating thereto, including ideas, inventions, technology, information, know-how, methods, processes, plans, and designs (the “Confidential Information”), and acknowledging that such information is a valuable asset of MVS, Purchaser hereby covenants, agrees, represents and warrants that:

1. as between Purchaser and MVS, the Confidential Information, regardless of how it is conveyed (orally, in writing, electronically, or by visual inspection) is and shall at all times remain the sole and exclusive property of MVS; and
2. the disclosure or use of the Confidential Information to or by anyone other than Purchaser, its officers, agents or authorized clients, all of whom are, or must agree in writing to be, bound by confidentiality obligations commensurate with those set forth in this Section 15. A., will cause MVS irreparable injury; and
3. Purchaser understands that in order to protect MVS’s business, competitive position and good will, that Purchaser must maintain and preserve all of the Confidential Information and knowledge from all of MVS’s competitors and potential competitors, and the general public; and
4. Purchaser acknowledges that MVS derives a competitive advantage in the marketplace by maintaining the Confidential Information and knowledge of that information as secret and unavailable to MVS’s competitors, and/or to the general public; and
5. during the term of any agreement between Purchaser and MVS, including, without limitation, any Purchase Obligation and/or EULA, and after termination or expiration thereof for any reason, with or without cause, Purchaser agrees to hold the Confidential Information as secret, and shall not, directly or indirectly, individually or in combination or association with any other person or entity, divulge or disclose to any third-party (or otherwise provide any third-party access to) any Confidential Information without, in each instance, the prior written consent of MVS, except to the extent the Confidential Information must be disclosed per court order (provided that MVS has timely received notice and had an opportunity to limit such disclosure); and
6. during the term of any agreement between Purchaser and MVS, including, without limitation, any Purchase Obligation and/or EULA, and after its termination or expiration for any reason, with or without cause, Purchaser agrees that it shall not, directly or indirectly, individually or in combination or association with any other person or entity, cause or permit the use, copying or summarizing of any Confidential Information for Purchaser’s benefit, or for the benefit of any entity or person other than MVS, or to reverse engineer, disassemble, or otherwise obtain additional confidential information regarding the Equipment or Software, or any other product of MVS, except as may be necessary by Purchaser in the performance of its duties under any agreements between MVS and Purchaser, including, without limitation, any Purchase Obligation and/or EULA.

B. Limitations on Scope. In the event that any of the restrictions and/or limitations contained in this Section 15 are deemed to be unreasonable or to otherwise exceed the time, geographic and/or other limitations permitted by applicable law, such provisions shall be reformed to the maximum time and/or geographic limitations permitted by applicable law.

C. Remedies. Purchaser acknowledges that the restrictions and the limitations contained in this Section 15 are reasonable and necessary in view of the nature of the parties’ business in order to protect the legitimate business interests of MVS. Purchaser further acknowledges that any violation of the restrictions and/or limitations would result in irreparable injury to MVS. Therefore, Purchaser agrees that in the event of a breach or a threatened breach by Purchaser of the provisions of this Section 15, MVS shall be entitled to obtain preliminary and permanent injunctive relief restraining Purchaser from any violation of any provision of this Section 15. Purchaser shall use its best efforts to enforce the obligations of employees, agents and third-parties who obtain access to the Confidential Information (rightly or wrongly) through Purchaser.

D. Effect of Termination and Expiration. In the event of any termination or expiration of any agreement among Purchaser and MVS, including, without limitation, any Purchase Obligation or EULA, this Section 15 shall survive said event and continue in full force and effect in accordance with its terms.

‍

16. Language – Unless agreed upon otherwise in writing, all communications, documents, equipment labels, and execution of services shall be in the English language.

‍

17. Indemnity –

A. Purchaser covenants and agrees to defend, indemnify and hold harmless MVS and its affiliates, successors, managers, members, officers, employees, distributors, agents and/or assigns from and against any and all claims, suits, demands, losses, liabilities, costs, damages and expenses, including reasonable attorneys’ fees, experts’ fees and court costs, suffered or incurred by any such party arising from or relating to the sale, lease, use and/or operation of Equipment or Software leased, purchased or licensed by Purchaser from MVS, including, but not limited to, any claims of product liability, personal injury (including, but not limited to, death), damage to property or violation of any laws or regulations, and also including, but not limited to, claims of active or passive negligence.

B. Purchaser shall defend, indemnify and hold harmless Carnegie Mellon, its trustees, officers, employees, attorneys and agents from and against all claims or demands made against any one or more of them (and any related losses, expenses and costs, including attorneys’ fees and expenses) arising out of or relating to Purchaser’s use or disposition of or act or omission regarding, the Equipment and/or Software furnished or provided under any Purchase Obligation and/or EULA, and/or any goods or services which are based on or utilize any intellectual property, technology, information, products or materials furnished in conjunction with or under any Purchase Obligation and/or EULA, including, but not limited to, any claims of product liability, personal injury (including, but not limited to, death), damage to property or violation of any laws or regulations, and also including, but not limited to, claims of active or passive negligence.