Terms and Conditions
1. Applicability. These terms and conditions of sale (these “Terms”) are the only terms that govern the sale of the goods (“Goods”) by Grain Weevil Corporation (“Grain Weevil”) to the buyer named on the Order Confirmation (“Buyer”). Buyer and Grain Weevil are collectively referred to as the “Parties” and individually as “Party.” The accompanying order confirmation (the “Order Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement supersedes any of Buyer’s terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Acceptance of the Order Confirmation by Buyer (which shall be deemed accepted should Buyer not object in writing within 5 business days of receipt of the Order Confirmation) is a prerequisite to the purchase of the Goods and shall operate as an acceptance of these Terms, which are expressly incorporated into the Order Confirmation.
2. Delivery; Title and Risk of Loss. Grain Weevil, or its authorized representative, will deliver the Goods to Buyer’s location set forth in the Order Confirmation (the “Delivery Point”). Grain Weevil will use reasonable efforts to meet the estimated delivery date set forth in the Order Confirmation; provided that such delivery date is an estimate only and remains subject to shipping variations and requirements. Title and risk of loss pass to Buyer upon delivery of the Goods at the Delivery Point.
3. Inspection; Nonconforming Goods. Buyer shall inspect the Goods upon receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Grain Weevil in writing within 3 business days of the Inspection Period that any product shipped is different than identified in the Order Confirmation (“Nonconforming Goods”). If Buyer timely notifies Grain Weevil of any Nonconforming Goods, Grain Weevil shall, in its sole discretion (a) replace such Nonconforming Goods with conforming Goods or (b) credit or refund the Price for such Nonconforming Goods. Buyer acknowledges and agrees that the remedies set forth in the preceding sentence are Buyer’s exclusive remedies for Nonconforming Goods. Except as provided under this Section 3, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement.
4. Price; Payment Terms. Buyer shall purchase the Goods from Grain Weevil at the prices (the “Prices”) set forth in the Order Confirmation. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall pay Grain Weevil all invoiced amounts due within 30 days of the invoice date; provided that in any case Buyer shall pay Grain Weevil all amounts owed prior to delivery of the Goods. All payments shall be in US dollars and made by credit card, ACH, or check.
5. Prohibited Use. Buyer acknowledges and agrees that under no circumstances may Buyer use the Goods within a hazardous location designated as a “Class II, Division 1” location, as defined by 29 CFR 1910.307, without Grain Weevil’s prior written consent. In addition, Buyer acknowledges and agrees that under no circumstances may Buyer use the Goods in any location classified as Group E (Conductive dusts), Group F (Carbonaceous dusts), or any other explosive atmospheres. Additionally, Buyer is expressly prohibited from using the Goods to offer commercial services, including, but not limited to, third-party bin services, autonomous task contracting, or resale of data and insights. Any for-profit, revenue-generating, or enterprise-level use of the Goods beyond Buyer’s own farming operation requires execution of a separate agreement between the Parties. Breach of this Section 5 shall result in: (a) immediate revocation of all feature-based licenses (if any); (b) forfeiture of warranty protections; (c) violation of Grain Weevil’s intellectual property and trademark protection; (d) complete transfer of liability to the Buyer, including indemnification of Grain Weevil against all claims, losses, or regulatory actions, and (e) Grain Weevil’s right to seek injunctive relief and all available remedies under law.
6. Limited Warranty and Buyer’s Exclusive Remedy. Grain Weevil warrants to Buyer that: (a) for a period of 2 years from the date of delivery of the Goods (the “Warranty Period”), the Goods will materially conform to Grain Weevil’s published specifications in effect as of the date of shipment under the Order Confirmation; and (b) Buyer will receive good and valid title to the Goods, free and clear of all encumbrances and liens. The warranties under this Section do not apply where the Goods have been: (i) subjected to abuse, misuse, neglect, negligence, accident, abnormal physical stress or environmental conditions, use contrary to any instructions issued by Grain Weevil, or improper or prohibited use, testing, installation, storage, handling, repair, or maintenance; (ii) reconstructed, repaired, or altered by anyone other than Grain Weevil or its authorized representative; or (iii) used with any third-party product, hardware, or product that has not been previously approved in writing by Grain Weevil. During the Warranty Period: (a) Buyer shall notify Grain Weevil, in writing, of any alleged warranty claim within 30 days from the date Buyer discovers, or upon reasonable inspection should have discovered, such alleged claim (but in any event before the expiration of the applicable Warranty Period); (b) Buyer shall make available to Grain Weevil, or its authorized representative, the relevant Goods within 15 days of the date of its notice to Grain Weevil for inspection and testing by Grain Weevil; (c) if Grain Weevil’s inspection and testing reveals, to Grain Weevil’s reasonable satisfaction, that such Goods do not conform with the limited warranty set forth herein, Grain Weevil shall in its sole discretion, and at its expense (subject to Buyer’s compliance with this Section), either (i) repair or replace such Goods, or (ii) credit or refund the amount actually paid for such; and (d) if Grain Weevil exercises its option to repair or replace, Grain Weevil shall ship to Buyer, at Grain Weevil’s expense and risk of loss, the repaired or replacement Goods. Buyer has no right to return for repair, replacement, credit, or refund any Goods except as set forth in this Section 6. In no event shall Buyer reconstruct, repair, alter, or replace any Goods, in whole or in part, either itself or by or through any third party. This Section 6 sets forth the Buyer’s sole and exclusive remedy and Grain Weevil’s entire liability for any breach of the limited warranty set forth herein.
7. Warranties Disclaimer. Except for the express warranties set forth in Section 6, Grain Weevil makes no express or implied warranty whatsoever with respect to the Goods, including any: (a) warranty of merchantability; (b) warranty of fitness for a particular purpose; or (c) warranty against infringement of intellectual property rights of a third party; whether arising by law, course of dealing, course of performance, usage of trade, or otherwise. Buyer acknowledges that it has not relied upon any representation or warranty made by Grain Weevil, or any other individual or entity on Grain Weevil’s behalf, except as specifically provided in Section 6.
8. Limitation of Liability. In no event shall Grain Weevil or any of its representatives be liable for consequential, indirect, incidental, special, exemplary, punitive, or enhanced damages, lost profits or revenues or diminution in value, arising out of or relating to this Agreement, regardless of (a) whether such damages were foreseeable, (b) whether Grain Weevil was advised of the possibility of such damages, and (c) the legal or equitable theory (contract, tort, or otherwise) upon which the claim is based. Grain Weevil’s aggregate liability arising out of or related to this Agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, shall not exceed the total of the amounts paid to Grain Weevil pursuant to this Agreement in the year period preceding the event giving rise to the claim, or $25,000, whichever is less.
9. Termination. In addition to any remedies that may be provided under these Terms, Grain Weevil may terminate this Agreement with immediate effect upon written notice to Buyer for any reason or no reason at all.
10. Waiver. No waiver by Grain Weevil of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Grain Weevil. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement by Grain Weevil operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder by Grain Weevil precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege by Grain Weevil.
11. Intellectual Property. Buyer acknowledges and agrees that Grain Weevil is and will remain the sole and exclusive owner of all intellectual property rights in and to the Goods and any related specifications, instructions, documentation or other materials, including, but not limited to, all related copyrights, patents, trademarks and other intellectual property rights. Buyer does not and will not have or acquire any ownership of these intellectual property rights in or to the Goods, or of any intellectual property rights relating to those Goods. Buyer shall not modify, reverse engineer, disassemble, or decompile the Goods, or any portion thereof, including, but not limited to, the intellectual property therein.
12. Confidential Information. All non-public, confidential, or proprietary information of Grain Weevil, including but not limited to specifications, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Grain Weevil to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Grain Weevil in writing. Grain Weevil shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
13. Force Majeure. Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s reasonable control, including, the following force majeure events: (a) acts of God; (b) flood, tornado, fire, earthquake, epidemics, or pandemics; (c) war, terrorist threats or acts; (d) order or action by any governmental authority or requirements of law; (e) national, regional, or local emergency; and (f) other events beyond the reasonable control of the impacted Party.
14. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. This Agreement benefits solely the Parties to this Agreement. Nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
15. Governing Law; Jurisdiction. This Agreement is governed by, and construed in accordance with, the laws of the State of Nebraska without giving effect to any conflict of laws provisions thereof. All legal proceedings shall be instituted in the state or federal courts of the State of Nebraska. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts.
16. Waiver of Jury Trial and Binding Arbitration.
(a) BUYER AND GRAIN WEEVIL AGREE TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY. OTHER RIGHTS THAT BUYER WOULD HAVE IF BUYER WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN BUYER AND GRAIN WEEVIL ARISING FROM OR RELATING IN ANY WAY TO BUYER’S PURCHASE OF THE GOODS, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
(b) The arbitration will be administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (“Commercial Rules”). The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. If any provision of this Section 16 is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced.
17. Amendment and Modification; Severability. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each Party. If any term or provision of this Agreement is determined to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.