All Terms & Conditions
Last updated: May 2022
TERMS & CONDITIONS OF SALE
Subject to the terms of any other applicable written agreement you (“you”) have with Precisional, Precisional’s sale of Products and provision of Software are governed by these terms and conditions of sale (“Terms”). These Terms include the Basic Order Terms (defined below) specified on an order accepted by us. “Precisional”, “we” or “us” means Precisional LLC or its affiliate identified on our order acknowledgment. Every order you place with us is conditioned upon and confirms your acceptance of these Terms. Any contrary terms or conditions appearing on your orders or associated purchase documentation will be of no effect. No waiver, modification, or addition to these Terms, or any assignment of your rights or obligations under them is valid or binding on us unless in writing and signed by our authorized representative. These Terms and the other applicable agreements you enter into with Precisional constitute the entire agreement between you and Precisional for your purchase and use of Products and Software. Each accepted order will be interpreted as a single set of Terms, independent of other orders.
1. Definitions. “Products” means hardware products provided hereunder. “Software” means any software, library, utility, tool, or other computer or program code, in object (binary) or source-code form, as well as the related documentation, provided by Precisional to you. Software includes Product firmware, software locally installed on your systems and software accessed by you through the Internet or other remote means (such as websites, portals, software-as-a-service (“SaaS”) and “cloud-based” solutions). “Services” means any services provided by Precisional as described in one or more Service Agreements. “Service Agreements” are service contracts such as for support & maintenance or professional services, “Statements of Work,” and any other such mutually agreed upon documents. These Terms do not apply to Service Agreements which have their own terms and conditions.
2.1 Quotes, Validity of Orders: Our quotations are non-binding unless otherwise expressly stipulated in writing. Orders are accepted as valid and binding only when confirmed by us in writing. Orders cannot be canceled for any reason without our prior written consent.
2.2 Basic Order Terms: All orders must include the following information: (i) the Products and Software ordered and quantities, (ii) Precisional part number(s), (iii) prices, and (iv) delivery instructions, (collectively, “Basic Order Terms”). All Basic Order Terms are fixed and final upon our acceptance of the order.
3.1 Delivery time: Delivery times are established when Precisional accepts your order in writing. We will use commercially reasonable efforts to meet your requested delivery dates, unless you are in default under these Terms or our performance is otherwise excused. We are not liable for late or delayed delivery. Late delivery is not a basis for your cancellation of any order.
3.2 Delivery terms: Title and risk of loss or damage to Products passes to you when we deliver the Products to the shipping carrier (“Delivery”). Unless otherwise agreed, we will deliver the Product freight prepaid, provided that you pay or reimburse us for all applicable costs of carriage, freight, insurance (if applicable), taxes, duty and other related shipping charges. We have the right to make partial deliveries. Software may be delivered electronically at Precisional’s option. Title to the Software will remain with Precisional or its licensors.
4. Acceptance, Inspection, Notice of Nonconformance:
4.1 Your acceptance of ordered Products is deemed to occur upon our Delivery of the Products to the shipping carrier: Your acceptance of ordered Software is deemed to occur when the Software is activated or otherwise made available for your access or use, whichever date is earlier. You are responsible for giving prompt written notice of identified damage or nonconformance of Products. You must inspect the condition of the packaging and the Products upon receipt and indicate any evident damage to the carrier on the delivery note, have the carrier’s agent sign the document and, within two (2) days of receipt of the damaged or non-conforming Products, send all documents by e-mail or fax to our facility from which shipment took place, together with the carrier’s references. Concealed Product damage claims must be made by you to the carrier directly and you must also provide us with written notice and a copy of any such claim within 10 days of receipt of the affected Products. Likewise you must notify us within 10 days of receipt of incorrect Products. If you retain the Product without giving notice within the designated notice period, you will be deemed to have waived your right to reject the Product.
4.2 If you cancel an accepted Product order within 10 days prior to shipment or reject conforming Products received under an accepted order, we are entitled to claim reasonable compensation for restocking and other expenses actually incurred.
5. Return of Product: All Product returns are subject to our prior written consent and must comply with our product return (RMA) procedures then in effect. Before returning or exchanging a Product, you must contact us directly to obtain an authorization number to include with your return. You must return Products to us in their original or equivalent packaging, and you are responsible for risk of loss, as well as shipping fees back to Precisional. Products received but not eligible for return will be sent back to you freight collect. For approved returns you will receive credit equal to the lesser of the Product’s invoice price or its current replacement value, less any applicable charges or fees.
6. Pricing, Terms of Payment, Taxes:
6.1 Unless we state otherwise in writing, payment terms are net 30 days from our invoice date. You will make payment in the currency indicated on the invoice. We are entitled to offset payments against prior debt balances in your account. Products, Software or Services purchased or licensed under our United States General Services Administration (“GSA”) Schedules are subject to all of the pricing and other terms and conditions described in the applicable GSA Schedule.
6.2 We have the continuing right to review your credit and change your payment terms, and may at any time demand advance payment, satisfactory security (such as, but not limited to, a confirmed, irrevocable letter of credit acceptable to us), or a guarantee of prompt payment prior to shipment or service activation.
6.3 We reserve the right to charge interest on all overdue sums owing to us under these Terms at the rate of 1.5% per month (or the highest legal limit if lower than said amount), measured from the date the sums in question became payable to the date on which we receive full payment.
6.4 You grant us a purchase money security interest in each Product delivered to you until payment is made in full to us for such Products. Upon request, you will cooperate with us in perfecting any such security interest.
6.5 You are liable for any costs incurred by us if you change or cancel any order, and for all costs of collection of past due amounts (including attorneys’ fees).
6.6 Our stated prices for Products and Software do not include applicable sales taxes, Value Added Tax, export or import charges, transportation or insurance charges, customs and duty fees, personal property taxes or similar charges, all of which are your responsibility to pay. Unless you provide us with direct payment authority or an exemption certificate valid in the jurisdiction to which the Product will be delivered, you shall pay us all taxes and governmental fees we are required to collect or pay upon sale or delivery of the Product.
7. Limited Warranty:
7.1 Products and Software: Unless (i) the limited warranty included with a Product or (ii) the User Agreement accompanying any Software grants you different rights or disclaims all warranties, we warrant to you, and only to you, as applicable, (a) that our Products are designed and manufactured to conform to our specifications and will be free from defects in material and workmanship for a period of 12 months from date of Delivery, and (b) that our Software will substantially conform to the functional specifications and current documentation provided by Precisional for a period of 90 days. During the warranty period, our liability and your exclusive remedy is limited, at Precisional’s option, to replacing, repairing, correcting, or issuing credit for any Product or Software subject to the warranty in this Section 7.1, which upon inspection we determine is non-conforming.
7.2 Warranty Exclusions: The foregoing limited warranty only applies if and to the extent that (a) the Product or Software is properly and correctly installed, configured, interfaced, maintained, stored, and operated in accordance with our applicable documentation and specifications, and (b) the Product or Software is not modified or misused. This limited warranty does not apply to, and we are not responsible for defects or performance problems resulting from (i) the combination or use of the Product or Software with hardware or software products, information, data, systems, interfaces or devices not made, supplied or specified by us; (ii) operating the Product or Software under any specification other than, or in addition to, our standard specifications for them; (iii) the unauthorized installation, modification, repair or use of the Product or Software; (iv) damage caused by accident, lightning or other electrical discharge, fresh or salt water immersion or spray (outside Product specifications); or exposure to environmental conditions for which the Product or Software is not intended; (v) normal wear and tear on consumable parts (e.g., batteries) or (vi) cosmetic damage. We do not warrant or guarantee the results obtained through the use of the Product or Software. WE MAKE NO WARRANTIES UNDER THESE TERMS WITH RESPECT TO SERVICES, WHICH IF PROVIDED HEREUNDER ARE PROVIDED “AS-IS”.
NOTICE REGARDING PRODUCTS EQUIPPED WITH SATELLITE OR WIRELESS TECHNOLOGY. Your use of certain Products and Software is dependent on the availability and coverage of wireless networks, telecommunications networks, satellite positioning systems and the Internet, which involve facilities owned and operated by third parties. WE ARE NOT RESPONSIBLE FOR THE OPERATION, AVAILABILITY OR FAILURE OF SUCH THIRD PARTY SYSTEMS OR FACILITIES.
7.3 WARRANTY DISCLAIMER: THE FOREGOING LIMITED WARRANTY TERMS ARE IN LIEU OF ALL OBLIGATIONS OR LIABILITIES ON OUR PART ARISING OUT OF, OR IN CONNECTION WITH, OUR PRODUCTS AND SOFTWARE AND STATE OUR ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDIES RELATING TO THEM. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS, THE PRODUCTS AND SOFTWARE AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED “AS-IS” AND WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND, EITHER BY US OR ANYONE WHO HAS BEEN INVOLVED IN ITS CREATION, PRODUCTION, INSTALLATION, OR DISTRIBUTION, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NONINFRINGEMENT. ADDITIONALLY, WE MAKE NO EXPRESS OR IMPLIED WARRANTY THAT SOFTWARE PROVIDED TO YOU IN CONNECTION WITH THESE TERMS, IS OR WILL BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, FREE OF ERRORS, OR FREE OF VIRUSES, OR OTHER MALWARE OR PROGRAM LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE ABOVE LIMITATION MAY NOT APPLY OR FULLY APPLY TO YOU. IF YOU ARE A RESELLER OF THE PRODUCTS OR SOFTWARE YOU SHALL NOT MAKE OR PASS ON TO YOUR OWN CUSTOMERS ANY WARRANTY, CONDITION OR REPRESENTATION ON BEHALF OF US OTHER THAN, OR INCONSISTENT WITH, THE APPLICABLE LIMITED WARRANTY IN THE PRODUCTS AND SOFTWARE PROVIDED TO YOU.
PLEASE NOTE: THE ABOVE LIMITED WARRANTY PROVISIONS WILL NOT APPLY TO PRODUCTS YOU PURCHASE IN THOSE JURISDICTIONS IN WHICH PRODUCT WARRANTIES ARE THE RESPONSIBILITY OF THE LOCAL DISTRIBUTOR FROM WHOM THE PRODUCTS ARE ACQUIRED. IN SUCH CASE, PLEASE CONTACT YOUR PRECISIONAL PRODUCT DEALER FOR APPLICABLE WARRANTY INFORMATION.
8. Warranty Procedures:
8.1 Warranty Repair Procedure: If any Product fails during the warranty period for reasons covered by our limited warranty and you notify us of such failure during the warranty period, we will at our option repair or replace a nonconforming Product with new, equivalent to new, or reconditioned parts or Product or, if either of the foregoing is commercially impractical in Precisional’s determination, refund the Product purchase price you paid (excluding separate costs of installation, if any) upon your return of the Product in accordance with our product return procedures as referenced in Section 5 above. Any repaired or replaced Product will be warranted for a period of 30 days or the remainder of the original warranty period, whichever is longer. We may, in our sole discretion, arrange for fulfillment of our warranty obligations through a Precisional affiliate, authorized distributor or an authorized warranty service center.
8.2 Determination of Warranty Applicability: We reserve the right to refuse warranty services if the Product or Software date of purchase cannot be proven, if a claim is made outside the warranty period or if a claim is excluded under Section 7.2 above. Following our examination of your claim, we will notify you of warranty status and the repair cost of any out-of-warranty Product. At such time you must issue a valid purchase order to cover cost of the non-warranted Product repair and return freight, or authorize return shipment of the Product at your expense as-is.
8.3 Not Responsible for Lost Data: We are not responsible for any modification or damage to, or loss of any programs, data, or other information stored on any media or any part of any Product serviced by us, or stored or hosted by us in connection with a Software service we provide, or for the consequence of such damage or loss, (such as business loss in the event of system, program or data failure.) You are solely responsible for backing up data and removing all features, parts, alterations, and attachments not covered by warranty prior to releasing the Product to Precisional for service or seeking Software support. Any Product or Software sent to Precisional for support may be returned to you configured as originally provided to you by Precisional.
9.LIMITATION OF LIABILITY: OUR ENTIRE LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS IS LIMITED TO THE AMOUNTS YOU ACTUALLY PAID TO US UNDER THE TERMS. FURTHER, NEITHER WE NOR OUR SUPPLIERS ARE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE DAMAGES OR OTHER DAMAGES, OR LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF USE OF THE PRODUCTS OR SOFTWARE OR ANY ASSOCIATED EQUIPMENT, COSTS OF COVER, DOWNTIME AND USER TIME OR FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITIONS, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THE PRODUCTS OR SOFTWARE. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, ANY IMPLIED WARRANTY OF SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE APPLYING TO THE PRODUCTS OR SOFTWARE IS LIMITED IN DURATION TO THE DURATION OF THE WARRANTY SPECIFIED IN SECTION 7, ABOVE. YOU AND WE AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR PRECISIONAL’S SALE OF PRODUCTS TO YOU, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIFIED OTHER DAMAGES, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY, OR MAY NOT FULLY APPLY TO YOU.
10. Intellectual Property Ownership: You agree that Precisional owns all right, title and interest to all intellectual property and other proprietary rights to documents and materials, calculations, drawings, models, plans, sets of tools, technology, software, designs, engineering details, schematics and similar data relating to or incorporated in the Products and Software and any accompanying documentation or information derived from the foregoing. You shall take reasonable precautions to prevent unauthorized access and use of the Software and documentation by third parties. To the extent permitted by relevant law, you shall not, nor allow any third party to copy, decompile, disassemble or otherwise reverse engineer the Products or Software, or attempt to do so. You are prohibited from, and shall prevent any third party from, removing, covering or altering any of our patent, copyright or trademark notices placed upon, embedded in or displayed by the Products or Software or their packaging and related materials. We reserve all rights in the Products and Software not specifically granted to you under these Terms.
11. Government End Users-Restricted Rights. The Software and its associated documentation are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 12.227.7202-1 through 227.7202-4, all U.S. Government end users acquire the software and documentation with only those rights set forth in the User Agreement for such Software.
12. Export Control: You may not use or otherwise export or re-export the Products or Software except as authorized by the laws of the jurisdiction in which they were obtained. In particular, but without limitation, the Products and Software may not be exported or re-exported in violation of export laws, including if applicable export or re-export into any US-embargoed countries or to anyone on the US Treasury Department’s list of Specially Designated Nationals or the US Department of Commerce Denied Person’s List or Entity List. You represent that you are not located in any country or on any list where the provision of Products or Software to you would violate applicable law. You also agree not to use or enable use of them for any purposes prohibited by applicable law or export or re-export any Product or Software with knowledge that it will be used in the design, development, production or use of chemical, biological, nuclear or ballistic weapons. Laws and regulations change frequently. It is your responsibility to know the law pertaining to export/import procedures in the country of destination of the Product and Software. You shall defend, indemnify and hold us harmless against any liability (including attorneys’ fees) arising out of your failure to comply with the terms of this paragraph.
13. Default: We reserve the right by written notice of default to cancel or indefinitely suspend an accepted order and to refuse additional orders if: (i) you default in performing your obligations under these Terms, (ii) you cease business operations or enter into any bankruptcy, insolvency, receivership or like proceeding not dismissed within 30 days, or assign your assets for the benefit of creditors, or (iii) when obtaining third-party financing in connection with your Product purchase(s) you fail to do so in a timely manner on terms satisfactory to us.
14. Applicable law - Settlement of Disputes:
These Terms and any dispute, claim or controversy arising therefrom shall be governed by the laws of the country, state and province in which we have our principal place of business, namely for Precisional LLC or any affiliated company in the United States the laws of the State of Delaware and applicable United States federal law, without reference to “conflict of laws” principles, unless expressly prohibited by local law. The United Nations Convention on Contracts for the International Sale of Goods will not apply. No dispute or legal action arising under these Terms, may be brought by either party more than one (1) year after such cause of action accrued, except that an action for nonpayment may be brought within two (2) years of the date of the last payment.
15. Severability: These Terms may be severable and the invalidity, illegality or unenforceability in whole or in part of any provision does not affect the validity of other provisions.
16. Force Majeure: Neither party will be liable for non-performance (except for payment obligations) due to causes beyond its reasonable control, provided that such party promptly notifies the other in writing of such occurrence and makes its best efforts to promptly eliminate the effect thereof.
17. Notices: Any notice or other communication given by either party to the other regarding these Terms will be deemed given and served when personally delivered, delivered by reputable international courier requiring signature for receipt, or five (5) business days after mailing (postage prepaid), addressed to the party at its notice address. Either party may change its notice address by written notice to the other. Your notice address will be the address appearing on the accepted purchase order. Our notice address is: Precisional Inc., Attn: Contracting Supervisor, LLC, 3333 Warrenville Rd, Unit 200, Lisle, IL 60532 USA.
18. Waste Electrical & Electronic Equipment (WEEE): If the Products are furnished to you as component products on an OEM basis, or for import, resale or distribution to third parties, then you agree that you qualify as, and are deemed the “producer” of all such Products under any laws, regulations or other statutory scheme providing for the marking, collection, recycling, take-back, and/or disposal of electrical and electronic equipment (“WEEE Regulations”) in any jurisdiction whatsoever, (e.g., national laws implementing EU Directive 2012/19 on waste electrical and electronic equipment, recast), and are solely responsible for complying with all such applicable WEEE Regulations in connection with those Products and for all associated costs.
19. Official Language: The official language of these Terms is English. If there is a conflict between versions of these Terms in any other language, the English language version controls.
Terms & Conditions for Services
Subject to the express terms of any other valid agreement you (“Client”) have with Precisional (as defined below), Precisional’s provision of Services (as defined below) are governed by these Terms and Conditions for Services (“Terms”). “Precisional” means Precisional LLC and/or its affiliates identified in the SOW (as defined below). Any contrary or additional terms or conditions appearing on Client orders or associated purchase documentation will be of no effect. Precisional agrees to furnish the Services only upon these Terms. These Terms include the terms and conditions of any orders, quotations, statements of work, scopes of work, or other similar document for the provision of services by Precisional that references these Terms and is accepted by Precisional in writing (collectively referred to herein as the “Scope of Work” or “SOW”). Each accepted SOW will be interpreted as a single set of Terms, independent of other orders and/or SOWs. Precisional quotations are non-binding unless otherwise expressly stipulated in writing. Quotes are accepted as valid and binding only when confirmed by Precisional in writing. Accepted quotations cannot be canceled for any reason without the prior written consent of Precisional.
1. Services. Precisional agrees to use commercially reasonable efforts to render the Services described in the SOW (the “Services”) by the delivery dates specified therein, if any. Any deliverables provided to Client as part of the Services will be deemed “Deliverables.” The parties may execute additional SOWs describing Services and referencing these Terms.
2. Changes to Scope of Services. If Client desires changes to a SOW, Client will submit a written request to Precisional detailing the proposed changes. Upon receipt of Client’s request, or if Precisional desires changes to an SOW, Precisional shall prepare an amendment to the SOW, change order, or like document (referred to herein collectively as the “Change Document”) detailing the changes, any fee adjustments required as a result of such changes, any adjustments to the delivery schedule required as a result of such changes, and any other necessary adjustments. If the Change Document is mutually agreed to, both parties will execute it. If Client and Precisional are not able to agree to the terms of the Change Document, the SOW will remain unchanged.
3. Payment. Unless otherwise specified in the applicable SOW, the following shall apply. Client will pay Precisional its customary rates for Services monthly based upon actual time spent. Client agrees to reimburse Precisional for pre-approved travel, lodging and meal expenses incurred in the course of performing the Services at any location other than Precisional’s site. Precisional will invoice Client for expenses incurred and at Client’s request and expense Precisional will provide copies of receipts for which charges are incurred. All payments are non-refundable and shall be made in U.S. dollars (or such other currency specified in a SOW) within thirty (30) days from the date of Precisional’s invoice. Client will be responsible for all sales, service, and value added taxes, withholdings, duties and levies in connection with the Services (excluding taxes based on the net income or profits of Precisional or any franchise tax imposed on Precisional). Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
4. Termination. Either party may terminate these Terms or any SOW if the other party: (a) fails to cure any material breach of these Terms within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such part (and not dismissed within sixty (60) days thereafter). Following termination, Sections 5 (License and Ownership), 7 (Limitation of Remedies and Damages), 8 (Confidential Information), 9 (Client Reference), 10 (Export Compliance) and 11 (General Provisions) will survive. Section 3 (Payment Terms) will survive with respect to payments earned prior to termination.
5. License and Ownership
5.1 Client Materials. Client agrees to provide Precisional with reasonable access to and a limited right to use Client technical data, computer programs, files, documentation, and/or other materials (“Client Materials”),resources, personnel, equipment or facilities to the extent such access is necessary for the performance of Services. Client will be responsible for, and assumes the risk of any problems resulting from the content, accuracy, completeness, competence or consistency of Client Materials or its personnel. To the extent that Client does not timely provide the access, quality, level of detail and/or scope required for Precisional to perform the Services or deliver the Deliverables, Precisional shall be excused from performance until such items/access are provided or the applicable deficiencies corrected. Client owns and will retain ownership (including all intellectual property rights) in the Client Materials. Client grants to Precisional a royalty-free, non-exclusive license to access and use the Client Materials (including through subcontractors) as required for Precisional’s performance of the Services.
5.2 Deliverables. Subject to Section 5.3 (Assignment of Ownership to Client), Precisional hereby grants Client a perpetual, worldwide, royalty-free, non-exclusive license to use, copy, modify, or develop derivative works of the Deliverables but only for internal purposes and otherwise in accordance with the description of Client’s use and any restrictions set forth below or in the applicable SOW. Precisional owns and will retain ownership (including all intellectual property rights) in and to the Deliverables (excluding any Client Materials) and any modifications, improvements and derivative works thereof (including any such materials to the extent incorporating any ideas, feedback or suggestions of Client (“Feedback”)). Client acknowledges that Precisional is free to exploit, use, license and distribute, any Feedback provided to Precisional as it sees fit, without obligation of compensation or attribution.
5.3 Assignment of Ownership to Client. If the parties have agreed that Precisional will assign ownership of any portion of the Deliverables to Client, the relevant SOW must expressly set forth the terms and conditions regarding such assignment.
5.4 Precisional Product Enhancements and Modifications. Notwithstanding anything in these Terms or any SOW to the contrary, any enhancements or other modifications to any of Precisional’s commercially available products and/or services that are developed by Precisional as part of the Services shall be owned by Precisional and Client shall have no right, title, or interest therein; provided, that if Precisional has granted to Client a license or access to use such commercially available products and/or services under a written agreement, then Client’s rights under such agreement shall also extend and apply to any enhancements and modifications so made by Precisional. Other than Client Materials, Precisional owns all computer programs, utilities and intellectual property which aid Precisional in performing the Services or which are produced as a result of the Services.
5.5 Other Agreements. Precisional and Client may have entered into one or more separate agreements under which Precisional supplies, licenses, or otherwise makes available certain products and/or services to Client, including updates and enhancements to that software. The delivery and use of any such products and/or services is governed by the terms of such other agreement and not these Terms, and even if listed in a SOW such products and/or services shall not be considered a Deliverable hereunder.
6. Limited Warranty and Disclaimer.
6.1 Precisional will perform the Services and deliver the Deliverables in a professional and workmanlike manner and in compliance in all material respects with all applicable laws, rules, and regulations. Precisional will, as its entire liability and obligation to Client and Client’s sole and exclusive remedy for failure to provide Services or Deliverables meeting this warranty, (a) re-perform the non-conforming Services or (b) re-deliver the nonconforming Deliverables at no additional cost to Client if notified of the non-conformity within thirty (30) days of delivery of the applicable Service or Deliverable, or if Precisional determines such remedies to be impracticable within a reasonable period of time, (c) terminate the applicable Statement of Work and refund the portion of fees attributable to such non-conforming Services or Deliverables.
EXCEPT FOR THE WARRANTY SET FORTH ABOVE, PRECISIONAL MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES AND DELIVERABLES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
6.2 Construction Model. If the Deliverables include a “Construction Model,” which is a 3D representation of a construction project including, but not limited to, some or all of the following elements: building components, construction equipment, and site components, Client agrees and acknowledges that any Construction Model is developed for the sole use of Client and based on specifications provided by the Client (the “Specifications”). Client will be responsible for, and assumes the risk of, any problems resulting from the content, accuracy, or completeness of the Specifications. The Construction Model will not be used for any project other than as specified by the Statement of Work. If the Construction Model is being used by Client as part of an effort to generate construction documents, as-built construction drawings, or “shop” drawings, Precisional accepts no liability and/or responsibility for such construction documents, as-built construction drawings, or shop drawings. Any use of, or reliance on, a Construction Model by any third party will be at their sole risk and without liability to Precisional. If Client discloses the Construction Model to any third party, Client shall to the fullest extent permitted by law, defend, indemnify and hold harmless Precisional for any suit, claim, action, damage or liability brought against Precisional by any third party arising from the Specifications, construction documents, as-built drawings, shop drawings, or the development, delivery or use of all or any part of the Construction Model by Client or by any such third party. Precisional makes no representations regarding the Construction Model’s compliance with applicable building and construction codes or regulations. The Construction Model does not constitute an approved construction document, as-built drawing or shop drawing. Client will consult with its local building authority to confirm adherence with applicable building codes or regulations. Before beginning construction, Client will have a licensed architect or trade-appropriate engineer sign off on the Construction Model and all construction documents, drawings, Specifications and/or models.
7. Limitation of Remedies and Damages. NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THE SERVICES REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. IN NO EVENT WILL PRECISIONAL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO PERFORMANCE OF THE SERVICES EXCEED THE NET AMOUNT PRECISIONAL HAS ACTUALLY RECEIVED FROM CLIENT UNDER THE SOW APPLICABLE TO SUCH CLAIM. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT. THIS SECTION 7 DOES NOT APPLY TO EITHER PARTY WITH RESPECT TO ITS BREACH UNDER SECTION 8 (CONFIDENTIAL INFORMATION) OR TO CLIENT WITH RESPECT TO ANY CLAIM ARISING AS A RESULT OF CLIENT’S VIOLATION OF LICENSE RESTRICTIONS APPLICABLE TO THE DELIVERABLES UNDER SECTION 5.2 (DELIVERABLES), OR ITS INDEMNITY OBLIGATIONS UNDER SECTION 6.2 AND 10. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 7
8. Confidential Information. Each party (“Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software, documentation or technical information provided by Precisional (or its agents) and these Terms and any Quotations, and SOWs will be deemed Confidential Information of Precisional without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
8.1 Exclusions. The Receiving Party’s nondisclosure obligation will not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).
8.2 Use and Protection of Confidential Information. The Receiving Party may use the Confidential Information of the Disclosing Party only in pursuance of its business relationship with the Disclosing Party under these Terms. Except as expressly provided hereunder, the Receiving Party will not disclose Confidential Information of the Disclosing Party to anyone without the Disclosing Party’s prior written consent. The Receiving Party will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of the Disclosing Party’s Confidential Information, including, at a minimum, those measures it takes to protect its own Confidential Information of a similar nature. The Receiving Party will restrict the possession, knowledge and use of the Confidential Information to its employees, contractors, legal and financial advisors who (i) have a need to know such Confidential Information in connection with the parties’ business relationship, and (ii) have executed written nondisclosure agreements obligating them to protect the Confidential Information.
8.3 Use and Protection of Confidential Information. The Receiving Party may use the Confidential Information of the Disclosing Party only in pursuance of its business relationship with the Disclosing Party under these Terms. Except as expressly provided hereunder, the Receiving Party will not disclose Confidential Information of the Disclosing Party to anyone without the Disclosing Party’s prior written consent. The Receiving Party will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of the Disclosing Party’s Confidential Information, including, at a minimum, those measures it takes to protect its own Confidential Information of a similar nature. The Receiving Party will restrict the possession, knowledge and use of the Confidential Information to its employees, contractors, legal and financial advisors who (i) have a need to know such Confidential Information in connection with the parties’ business relationship, and (ii) have executed written nondisclosure agreements obligating them to protect the Confidential Information.
8.4 Legally Required Disclosure. The Receiving Party may disclose Confidential Information to the extent reasonably required to comply with court, administrative, or binding orders of governmental entities, provided that the Receiving Party gives prompt notice to the Disclosing Party of the receipt of the order and cooperates fully in any effort to obtain an order preserving the confidential nature of the Confidential Information.
9. Client Reference. Client agrees that upon execution of these Terms, Precisional may add Client to Precisional’s publicly disclosed customer list (which may include use of Client’s name and logo in customer lists on Precisional’s website and marketing materials). Except as set forth in this Section 9, neither party may use the other party’s name in advertisements nor otherwise publicly disclose the terms and content of these Terms without the other’s prior written consent.
10. Export Compliance. Client is responsible for complying with all applicable export and import regulations and obtaining all necessary export and import licenses or permits for the direct or indirect export or import of any Deliverable. Client hereby acknowledges and agrees that Precisional technology, software, products, and/or proprietary information that may be used in the creation of Deliverables and incorporated therein are subject to the U.S. Export Administration Regulations and were exported from the United States, if at all, in accordance with those regulations. Therefore, Client shall comply strictly with all U.S. export control laws and regulations applicable to the Deliverables, and shall not export, re-export, transfer, divert or disclose any such Deliverables, or any direct product thereof, to any destination restricted or prohibited by U.S. export control laws, or to any national or resident thereof. Client will defend, indemnify and hold Precisional harmless against any liability (including attorneys’ fees) arising out of Client’s failure to comply with the terms of this paragraph. Client’s failure to comply with any term of this paragraph will constitute a material breach hereof and entitle Precisional to immediately terminate these Terms and any associated SOW in addition to any other remedy available at law or equity. Client’s obligations under this paragraph will survive the termination of these Terms or any SOW.
11. General Provisions
11.1 Governing Law. Unless expressly otherwise set forth in an SOW, these Terms and any dispute, claim or controversy arising therefrom shall be governed by the laws of the applicable location set forth below, unless expressly prohibited by local law, in each case without reference to “conflict of laws” principles:
Governing Law: Delaware and applicable United States federal law
Courts having exclusive jurisdiction: Federal and Delaware state courts located in New Castle County, DE
Any suit or proceeding arising out of or relating to these Terms shall be commenced in such jurisdiction, and each party irrevocably submits to the jurisdiction and venue of such courts. The United Nations Convention on Contracts for the International Sale of Goods will not apply. No dispute or legal action arising under these Terms may be brought by either party more than one (1) year after such cause of action accrued, except that an action for nonpayment may be brought within two (2) years of the date of the applicable invoice.
11.2 Independent Contractors. Each party is an independent contractor of the other and neither is an employee, agent, partner or joint venturer of the other. Neither party shall voluntarily or involuntarily bind nor attempt to bind the other to any contract or to the performance of any obligation. Neither party may represent to third parties that it has any right to enter into any obligation on the other’s behalf. The parties hereby agree that there are no third party beneficiaries of these Terms.
11.3 Assignment; Binding Effect. Neither party shall assign these Terms without the advance written consent of the other party, except that Precisional may assign these Terms to an affiliate or in the event of a merger, reorganization, acquisition or other transfer of all or substantially all of Precisional’s assets or voting securities. These Terms will otherwise be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
11.4 Notices. Any notice, report, approval or consent which may be or is required to be given under these Terms shall be in writing to the address(es) specified in the SOW, and shall be deemed to have been received: (a) when delivered personally, (b) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (c) one (1) day after having been sent by a commercial overnight carrier with written verification of receipt. Either Party may change its notice address by written notice to the other. In addition, any notice to Precisional shall also include a copy to: Precisional LLC, Attention: Contracting Department, Warrenville Rd, Unit 200, Lisle, IL 60532 USA.
11.5 Force Majeure. Except for payment obligations, neither Party will be liable to the other for failure to perform its obligations to the extent caused by an event beyond the reasonable control of such Party, including, without limitation, government regulations or orders, outbreak of a state of emergency, acts of god, acts of terrorism, blockade, war, warlike hostilities, civil commotion, riots, epidemics, fire, natural disasters, strikes, lockouts, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency, or any other similar cause or causes, provided that, to the extent feasible, the affected party promptly notifies the other of such occurrence and makes its commercially reasonable efforts to eliminate the effect thereof.
11.6 Waivers. Any waiver by either party of any breach of these Terms, whether express or implied, will not constitute a waiver of any other or subsequent breach. No provision of these Terms will be waived by any act, omission or knowledge of a party or its agents or employees except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving party. If any provision of these Terms is adjudicated by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect.
11.7 Headings. The headings contained in these Terms are for reference purposes only and shall not affect in any way the meaning or interpretation of these Terms.
11.8 Entire Agreement. No provision of any purchase order or other business form employed by Client will supersede these Terms, and any such document relating to these Terms shall be for administrative purposes only and shall have no legal effect. Both parties agree that these Terms, together with the SOW, are the complete and exclusive statement of the mutual understanding of the parties, and supersede and cancel all previous written and oral agreements and communications relating to the subject matter of these Terms.
11.9 Official Language. The official language of these Terms is English. If there is a conflict between versions of these Terms in any other language, the English language version controls.
11.10 Amendments. No waiver, modification, or addition to these Terms, or any assignment of Client’s rights or obligations under an SOW shall be valid or binding on Precisional unless in writing and signed by an authorized Precisional representative.
11.11 Independent Activities. Client acknowledges that nothing in these Terms will prohibit Precisional or its affiliates from providing products and services that are similar to or compete with the Services and Deliverables provided that Precisional does not violate any of its confidentiality obligations under these Terms in connection with such activities.
11.12 Order of Precedence. In case of any inconsistency, conflict, or ambiguity among these Terms, an SOW, or any related agreements, the documents shall govern in the following order: (a) these Terms; (b) mutually executed Change Documents to an SOW; (c) the SOW; and (d) other documents expressly referenced in a Change Document and/or the SOW. Among categories of documents having the same order of precedence, the term or provision that includes the latest date shall control. Information identified in one document and not identified in another shall not be considered a conflict or inconsistency.
11.13 Counterparts. The SOW may be executed in any number of counterparts, each of which will be considered an original and all of which when taken together will constitute a single fully-signed original. Facsimile and other electronic means of signatures on the SOW are binding.
Terms & Conditions for Inbound Services
Subject to the express terms of any other valid agreement Consultant (as defined below) has with Precisional (as defined below), Consultant’s provision of Services (as defined below) for Precisional are governed by these Terms and Conditions for Inbound Services (“Terms”). “Precisional” means Precisional LLC and/or its divisions, subsidiaries, affiliates, joint ventures and partnerships identified in the SOW (as defined below). “Consultant” means the service provider named in the SOW, including all employees, subcontractors, agents, and associates of such named service provider. Any contrary or additional terms or conditions appearing on Consultant quotations or associated documentation will be of no effect.
Consultant agrees to furnish the Services and provide the Deliverables (as defined below) upon these Terms. These Terms include the terms and conditions of any purchase orders, quotations, statements of work, scopes of work, or other similar document for the provision of services by Consultant that references these Terms and is accepted by Precisional in writing (collectively referred to herein as an “SOW”). Each SOW will set forth: (i) a description of the Services and Deliverables to be performed and tendered by Consultant; (ii) deadlines for performance and delivery; (iii) acceptance criteria, if applicable; (iv) Consultant’s compensation; and (v) any applicable special terms.
Each accepted SOW will be interpreted as a single set of Terms, independent of other orders and/or SOWs. Consultant’s quotations are accepted as valid and binding only when confirmed by Precisional in writing. Accepted quotations cannot be canceled for any reason without the prior written consent of Precisional.
In addition to any other definitions appearing in these Terms, the following words and phrases shall have the meanings indicated.
1.1 “Confidential Information” means any and all information related to Precisional’s business (including trade secrets, technical information, Intellectual Property, know-how, business forecasts and strategies, marketing plans, customer and supplier lists, personnel information, financial data, and proprietary information of third parties provided to Precisional in confidence) that is labeled or identified as “confidential” or “proprietary” or that Consultant otherwise knows, or would reasonably be expected to know, Precisional considers to be confidential or proprietary or that Precisional has a duty to treat as confidential. Without limiting the foregoing, Confidential Information includes all Deliverables and SOWs.
1.2 “Deliverables” means the results of all Services, including but not limited to all Intellectual Property, and all other work product or subject matter developed under these Terms.
1.3 “Intellectual Property” means every invention, device, design, apparatus, machine, technique, process, method, tool, product, model, procedure, improvement, algorithm, computer program, know-how, trade secret, trademark, work of authorship of any kind and any other form of technology or intellectual property (including all intermediate and partial versions thereof and documentation relating thereto), whether or not patentable or copyrightable.
1.4 “Open Source Software” means any “open source” code (as defined by the Open Source Initiative), “free” code (as defined by the Free Software Foundation), community source code, including any libraries or code licensed under the General Public License, or any other software that is generally made available for free on the Internet in source code form.
1.5 “Pre-Existing Intellectual Property” means any proprietary methodologies, tools, models, software, procedures, documentation, know-how, processes, trade secrets, inventions, works of authorship or other intellectual property that have already been conceived or developed by Consultant before Consultant renders Services under these Terms.
1.6 “Services” means all forms of labor and assistance, including the creation of Deliverables, defined in an SOW. At the direction of Precisional, Consultant shall provide Services directly to Precisional or to customers of Precisional on Precisional’s behalf.
1.7 “Third Party Materials” means any proprietary methodologies, tools, models, code, procedures, libraries, programs, software, documentation, know-how, processes, trade secrets, inventions, works of authorship or other intellectual property of any type that is not created solely by Consultant.
2. SERVICES AND DELIVERABLES.
2.1 Consultant agrees to use Consultant’s best efforts, knowledge and experience to perform the Services and tender the Deliverables meeting the acceptance criteria and deadlines specified on the applicable SOW.
2.2 Third Party Materials. Consultant shall not incorporate any Third Party Materials into a Deliverable, furnish any Third Party Materials in conjunction with a Deliverable, or develop a Deliverable in a manner that requires Precisional to use any Third Party Materials in order to use such Deliverable, unless Consultant (i) has specifically identified such Third Party Materials in the applicable SOW or otherwise obtained Precisional’s prior written consent and (ii) has obtained a license for Precisional’s (and Precisional’s licensees’) benefit which is as extensive as the license set forth in Section 6.5(ii) below. Consultant agrees to provide Precisional with a copy of the license for all Third Party Materials included in any Deliverable.
2.3 Use of Open Source. Consultant shall not incorporate any Open Source Software into a Deliverable, furnish any Open Source Software in conjunction with a Deliverable, or develop a Deliverable in a manner that requires Precisional to use any Open Source Software in order to use such Deliverable, unless Consultant has specifically identified such Open Source Software in the applicable SOW or otherwise obtained Precisional’s prior written consent. If Precisional approves use by Consultant of any Open Source Software in connection with a Deliverable, Consultant shall include documentation with each such Deliverable identifying any and all Open Source Software that is included in such Deliverable and provide Precisional a copy of the applicable license prior to inclusion. Precisional acknowledges that its license to any such disclosed Open Source Software shall be solely the license to the open source code listed in such documentation.
2.4 Types of Open Source Never Allowed. Notwithstanding the foregoing, Consultant shall not provide as part of any Deliverable, or otherwise use in connection with the Services, any software which contains any Open Source Software which is licensed under the “General Public License”, a similar “viral” license or any other license which could (i) compromise or interfere in any way with Precisional’s intellectual property rights or (ii) require Precisional to publicly release the source code to any Deliverable, to any Precisional software, or to any of Precisional’s customers’ or clients’ software.
2.5 Consultant’s Obligations. Consultant shall:
(i) before the date on which any Services are to start, obtain, and at all times during the term of this Agreement, maintain, all necessary licenses and consents and comply with all relevant laws applicable to the provision of such Services;
(ii) comply with all rules, regulations and policies of Precisional, including security procedures concerning systems and data and remote access thereto, building security procedures, including the restriction of access by Precisional to certain areas of its premises or systems for security reasons, and general health and safety practices and procedures;
(iii) maintain complete and accurate records relating to the provision of any Services under this Agreement, including records of the time spent and materials used by Consultant in providing the Services in such form as Precisional shall approve. During the Term and for a period of two years thereafter, upon Precisional’s written request, Consultant shall allow Precisional to inspect and make copies of such records and interview Consultant personnel in connection with the provision of the Services;
(iv) ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Consultant, are properly licensed, certified or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform any Services;
(v) ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards and standards specified by Precisional; and
(vi) keep and maintain any Precisional equipment in its possession in good working order and shall not dispose of or use such equipment other than in accordance with the Customer's written instructions or authorization.
3. PRECISIONAL ASSISTANCE; CONTACTS.
3.1 Except as otherwise provided in the applicable SOW, Consultant will have exclusive control over the manner and means of performing the Services, including the choice of place and time, and will use its expertise and creative talents in performing the Services. Consultant acknowledges that time is of the essence with respect to Consultant’s obligations hereunder and that prompt and timely performance of all such obligations is strictly required. Except as otherwise provided in the applicable SOW, Consultant will provide, at its own expense, a place of work and all equipment, tools, and other materials necessary to complete the SOW. Consultant agrees that if Consultant uses Precisional’s equipment or facilities, regardless of whether Precisional grants permission to Consultant to do so (which if granted, will be gratuitous), Consultant will be responsible for any injury (including death) to any person or damage to any property (including Precisional property) arising from such use, regardless of whether or not such injury or damage is claimed to be based upon the condition of such equipment or facilities, or is alleged to be based upon the negligence of Precisional in permitting such use. Each party will appoint one or more employees or agents of such party to act as the point(s) of contact for all consultations between the parties related to the Services.
4. CONSULTANT’S COMPENSATION.
4.1 Subject to Consultant’s performance under each SOW, Precisional shall, within the limits of a duly authorized Precisional purchase order, pay Consultant compensation in the amount(s) and at or within the time(s) described in the applicable SOW, provided that Consultant has submitted to Precisional:
(i) an invoice setting forth the applicable Precisional purchase order number and stating that Consultant has (a) performed all obligations on which any fixed-fee compensation is based or (b) submitted all time records on which any hourly compensation is based; and
(ii) all information or certifications as Precisional may reasonably require to satisfy any applicable government regulations.
Precisional shall only pay for those Services and Deliverables actually requested and rendered.
4.2 To the extent approved by Precisional in the applicable SOW, Precisional or its customers will reimburse Consultant, pursuant to Precisional’s standard reimbursement policies, for all reasonable and previously-approved out-of-pocket expenses incurred by Consultant pursuant to the Services. Consultant shall itemize and submit receipts for all such expenditures.
4.3 Unless otherwise specified in the applicable SOW, (i) all payments are due in U.S. Dollars within 45 days of Precisional’s receipt of an undisputed invoice, and (ii) Consultant shall not invoice Precisional until Precisional’s acceptance of the Services or Deliverables (as applicable) in accordance with the payment schedule set forth in the applicable SOW. Consultant will be responsible for all sales, service, and value added taxes, withholdings, duties and levies in connection with the Services (excluding taxes based on the net income or profits of Precisional).
4.4 Consultant acknowledges that this Section 4 sets forth the only compensation which Consultant is entitled to receive in exchange for the Services and that Consultant shall not be entitled to any other payments, benefits, reimbursements, royalties or consideration of any kind.
5. TERM AND TERMINATION OF SERVICES.
5.1 Term. These Terms shall become effective as between Precisional and Consultant as of the effective date of the first SOW between the parties and shall continue in effect for so long as there are any outstanding SOWs, unless earlier terminated as herein provided (the “Term”).
5.2 Termination by Precisional. Precisional may terminate these Terms or any SOW at any time with or without cause for its convenience, effective upon ten (10) days prior written notice to Consultant. Precisional may also terminate these Terms or any SOW: (i) immediately upon written notice to Consultant if Consultant breaches these Terms or the SOW, as the case may be, and does not fully cure the breach to Precisional’s satisfaction within ten (10) business days after Precisional gives notice of the breach to Consultant; (ii) if Consultant ceases operation without a successor; or (iii) if Consultant seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against Consultant (and not dismissed within 60 days thereafter). Precisional may terminate these Terms or any SOW immediately upon written notice if Precisional determines that Consultant is unable to perform the duties assigned to Consultant by Precisional.
5.3 Termination by Consultant. Consultant may terminate these Terms or the applicable SOW if Precisional fails to cure any material breach of these Terms or the applicable SOW within 30 days after receiving written notice of such breach.
5.4 Right to Earned Fee. If Precisional terminates an SOW prior to completion of Services other than for Consultant’s material breach, Consultant is entitled to be paid any unpaid compensation earned for authorized activities performed before the date of termination on a proportional basis, and to be reimbursed for prior approved expenses incurred before the date of termination, but Consultant will not be entitled to any other compensation.
5.5 Effect of Termination; Survival. Neither the expiration nor the termination of these Terms or an SOW shall relieve either party of any payment or other obligation incurred prior to such termination or expiration. Following termination, Section 1 (Definitions), Section 5.5 (Effect of Termination; Survival), Section 6 (Proprietary Rights), Section 7 (Confidential Information), Section 8 (Representations and Warranties; Restrictions on Consultant), Section 10 (Indemnification), Section 11 (Limitation of Liability), Section 12 (Bankruptcy) and Section 13 (General) will survive.
6. PROPRIETARY RIGHTS.
6.1 Disclosure and Assignment of Intellectual Property. Consultant agrees to promptly disclose to Precisional all Intellectual Property and other Deliverables arising out of performing Services. For example and without limitation, this includes all Deliverables and Intellectual Property that (i) result from any work performed by Consultant for Precisional or (ii) were invented utilizing Precisional’s equipment, supplies, facilities, time, or any Confidential Information. All of the Deliverables that contain copyrightable subject matter are explicitly considered by Consultant and Precisional to be specially commissioned by Precisional, and to constitute “works made for hire” to the extent permitted by law. To the extent not constituting works made for hire, consultant hereby irrevocably assigns to Precisional all Intellectual Property and other subject matter (whether or not patentable or copyrightable), and all proprietary and intellectual property rights in or arising from any of the foregoing (and further including the right to sue for past, present or future infringements or misappropriations thereof), that either: (a) arise out of the Services or (b) constitute (or are the subject of) a patent application which incorporates any Intellectual Property or Confidential Information and is filed by Consultant (either alone or with others). With respect to any right that cannot be assigned, Consultant grants to Precisional during the term of such rights, an exclusive (even as to Consultant), irrevocable, perpetual, worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels of sublicensees, under and to all of such rights in and to all Deliverables. The “work made for hire” designation and assignments in this Section 6.1 shall not apply to any Pre-Existing Intellectual Property.
6.2 Consultant’s Assistance. Upon request of Precisional, Consultant agrees to cooperate with and assist Precisional in perfecting, maintaining, protecting, and enforcing Precisional’s rights in the Deliverables, including, without limitation, obtaining patents, copyrights or other forms of proprietary rights requiring registrations. Consultant also agrees to sign all documents and do all things necessary to obtain and perfect such patents, copyrights or other proprietary rights, to assign them to Precisional, and to assist in protecting them against infringement or attack by other parties. The obligations of this paragraph are continuing and survive the termination of these Terms. In the event that Precisional requires Consultant’s assistance under this paragraph after the termination of these Terms, Consultant will be compensated for time actually spent in providing assistance at an hourly rate equal to Consultant’s average hourly rate under these Terms.
6.3 Appointment of Agent. Consultant irrevocably appoints Precisional to act as Consultant’s agent and attorney in fact to perform all acts necessary to obtain patents, copyrights or other proprietary rights to any assigned Intellectual Property or other Deliverable, if (i) Consultant refuses to perform those acts or (ii) is unavailable, within the meaning of any applicable patent, copyright or other proprietary rights laws.
6.4 No Filings by Consultant. Consultant shall not apply to register or perfect any proprietary right that is assigned to, or is otherwise owned by, Precisional pursuant to these Terms.
6.5 Pre-Existing Intellectual Property.
(i) Pre-Approval. Consultant shall not use any Pre-Existing Intellectual Property in connection with these Terms unless Consultant (a) has specifically identified such Pre-Existing Intellectual Property in the applicable SOW and (b) has the right to use such Pre-Existing Intellectual Property for Precisional’s (and Precisional’s licensees’) benefit and to issue the licenses set forth in this Section 6.5.
(ii) License. Consultant hereby grants Precisional a non-exclusive, royalty-free, irrevocable, worldwide, perpetual license, with the right to sublicense through multiple levels of sublicensees, in and to the Pre-Existing Intellectual Property incorporated into or necessary for Precisional to fully utilize and capitalize the Deliverables, to make, have made, sell, offer to sell, execute, reproduce, modify, adapt, display, publicly perform, distribute, digitally transmit, create derivative works of, import, disclose and otherwise use, in any medium or format, whether now known or hereafter discovered, the Pre-Existing Intellectual Property or products and services used in conjunction with Precisional’s use of the Deliverables.
6.6 Records on Deliverables. Consultant must keep complete and accurate records on all Deliverables in the manner and form requested by Precisional. Such records, and all copies thereof, are the property of Precisional. Consultant must promptly surrender the records at the request of Precisional, or in any event, upon the termination of these Terms. Consultant shall not retain copies of such records without the express written permission of Precisional for each record retained.
6.7 Restrictions on Documents and Equipment. All documents and equipment relating to the business of Precisional, whether prepared by Consultant or otherwise, coming into Consultant’s possession, are the exclusive property of Precisional, and must not be removed from the premises of Precisional except as required in the course of performance under these Terms. All such documents and equipment must be returned to Precisional upon request, and in any event, upon the termination of these Terms.
7. CONFIDENTIAL INFORMATION.
7.1 Confidentiality. Other than in the performance of these Terms, neither Consultant nor Consultant’s agents, employees, or contractors shall use or disclose to any person or entity any Confidential Information of Precisional (whether in written, oral, electronic or other form). The provisions of this Section 7 shall not apply to any information that Consultant can prove, by clear and convincing evidence: (i) is rightfully known to Consultant prior to disclosure by Precisional; (ii) is rightfully obtained by Consultant from any third party without restrictions on disclosure; (iii) is or is, or through no fault of Consultant has become, available to the public without restrictions; or (iv) is disclosed by Consultant with the prior written approval of Precisional. Consultant warrants and represents that each employee, agent, and contractor who performs work under these Terms has been informed of the confidentiality obligations contained herein and has agreed to be bound by them.
7.2 Standard of Care. Consultant will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as Consultant protects its own confidential or proprietary information of a similar nature, and with no less than the greater of reasonable care and industry-standard care.
7.3 No Publicity. Consultant agrees that it shall not issue or make any press releases, publications or public references regarding its relationship with Precisional unless Consultant first informs Precisional of such proposed publicity, submits all proposed publicity materials to Precisional for review and obtains Precisional’s prior consent in writing, in each particular instance.
7.4 Removal; Return. Consultant will not remove any tangible embodiment of any Confidential Information from Precisional’s facilities or premises without Precisional’s express prior written consent. Upon Precisional’s request and upon any termination or expiration of the Term, Consultant will promptly (i) return to Precisional or, if so directed by Precisional, destroy all tangible embodiments of the Confidential Information (in every form and medium); (ii) permanently erase all electronic files containing or summarizing any Confidential Information; and (iii) certify to Precisional in writing that Consultant has fully complied with the foregoing obligations.
7.5 Reverse Engineering Unless and except to the extent expressly authorized by Consultant to do so in the applicable SOW, Consultant will not attempt to reverse engineer, de-encrypt, or otherwise derive the design, internal logic, structure or inner workings of any Intellectual Property of Precisional.
8. REPRESENTATIONS AND WARRANTIES; RESTRICTIONS ON CONSULTANT.
8.1 No Conflicting Contracts or Interests. Consultant represents and warrants that Consultant has full right, power, and authority to enter into these Terms and each SOW without the consent of any third party, including the right to grant all licenses granted by Consultant hereunder and thereunder. Consultant represents and warrants that Consultant is not a party to and will not become a party to any contract or commitment with any other party that would interfere with Consultant’s compliance with these Terms or any SOW, or which would constitute a conflict of interest in Consultant’s availability for or performance of the Services contemplated in any SOW. Consultant will not disclose to Precisional, will not bring into Precisional’s facilities, and will not induce Precisional to use any confidential or proprietary information of any third party.
8.2 Consultant Performance. Consultant warrants that the Services shall be rendered and Deliverables shall be produced to the best of Consultant’s abilities, knowledge and experience, shall be timely, professional and workmanlike, shall comply with the applicable SOW, and shall meet or exceed the highest reasonable standards of Consultant’s industry.
8.3 Insurance Coverage. During the Term, Consultant warrants that it shall obtain and maintain at Consultant’s expense any and all insurance coverage as requested by Precisional in writing, including but not limited to, insurance coverage for Worker’s Compensation, and shall provide Precisional evidence of such insurance coverage within ten (10) days of execution of an SOW. Without limiting the foregoing, Consultant shall provide adequate coverage for any Precisional property under the care, custody or control of Consultant or Consultant’s personnel.
8.4 No Infringement. Consultant warrants that (i) except for any Third Party Materials and Pre-Existing Intellectual Property incorporated therein as expressly approved by Precisional pursuant to an SOW and consistent with these Terms, each Deliverable is and will be an original work of Consultant and (ii) the Services and Deliverables will not violate, infringe or misappropriate any Intellectual Property of any third party, or any copyright, trade secret, trademark, patent or other proprietary or intellectual property rights therein. In addition, Consultant will not grant, directly or indirectly, any right or interest in any Deliverable (other than any Pre-Existing Intellectual Property it may contain) to any other person.
8.5 No Competitive Planning or Solicitation of Customers. During the Term, Consultant agrees not to undertake any work for any outside business activity competitive with Precisional unless Consultant has first notified an officer of Precisional in writing of such activity. Consultant agrees not to disclose the identity of Precisional’s customers. Consultant agrees not to use any Confidential Information to divert or attempt to divert (by solicitation or other means) Precisional’s customers.
8.6 No Solicitation of Precisional Employees. During the Term, and for a period of one (1) year thereafter, Consultant agrees not to use any confidential information of Precisional or its affiliates to encourage or solicit any of Precisional’s employees or independent contractors to become an employee or independent contractor of Consultant.
8.7 No Commitment of Precisional. Consultant is not authorized to make any commitments whatsoever to any third party on behalf of Precisional except as otherwise authorized in writing by Precisional; and Consultant shall, when appropriate, inform third parties of this limitation.
8.8 No Harmful Code. The Services and all Deliverables shall be free of any: (i) viruses, worms, time bombs, Trojan horses or other harmful, malicious or destructive code; (ii) software disabling devices, time-out devices, counter devices and devices intended to collect data regarding usage of software without the knowledge of Precisional; and (iii) Open Source Software, except as expressly authorized by Precisional in writing in accordance with Section 2.
8.9 Remedy of Defects. Consultant shall, without charge, correct any non-conformity, defect or malfunction in any Deliverable reported by Precisional within 30 days of receipt of notice from Precisional, or if Consultant is unable to make the Deliverable operate as warranted within such 30-day period, then
9. ACCESS TO PRECISIONAL SYSTEMS
9.1 Access to Precisional’s Systems. Access, if any, to Precisional’s computer, telecommunication or other information systems (including computers, networks, voice mail, etc.) or those of any Precisional client or customer (“Systems”) is granted solely to facilitate the business relationship described in these Terms, and is limited to those specific Systems, time periods, and personnel designated by Precisional. Access is subject to business control and information protection policies as may be provided by Precisional. Any access to or use of any Systems except as expressly authorized is expressly prohibited. Without limiting the foregoing, Consultant warrants that it has adequate security measures in place to comply with the above obligations and to ensure that access granted hereunder will not impair the integrity and availability of Systems. Upon reasonable notice, Precisional may audit Consultant to verify Consultant’s compliance with these obligations.
9.2 Access to Precisional’s Software. Solely to the extent Precisional determines it is necessary for Consultant to have access to certain Precisional software or tools (“Precisional Software”) in order to perform the Services, subject to the terms and conditions of these Terms, Precisional grants to Consultant a non-exclusive, non-transferable, non-sublicensable, royalty-free license, to use the Precisional Software solely for the performance of the Services. Consultant will not use any of the trade secrets, algorithms, Intellectual Property, or technology revealed or embodied by the Precisional Software except as necessary to perform the Services. No right is granted by these terms for the use of the Precisional Software directly or indirectly by others. Consultant may not sublicense or otherwise transfer, by contract, operation of law, or otherwise, any of the rights granted to Consultant herein. All rights not expressly licensed herein are reserved to Precisional and its affiliates, customers and suppliers.
Consultant will defend, indemnify and hold harmless Precisional, its affiliates, officers, directors, employees, sublicensees, customers and agents from and against any and all claims, losses, liabilities, damages, expenses and costs (including attorneys’ fees and court costs) arising from or relating to: (i) any breach or alleged breach of any representation, warranty, covenant or other provision of these Terms by Consultant; (ii) any infringement or alleged infringement by Consultant, the Services or any Deliverable of any third-party intellectual property rights; or (iii) any personal injury or property damage caused by the negligence or willful misconduct of Consultant or its employees, agents, suppliers or subcontractors (a “Claim”). Precisional shall give Consultant written notice of any such Claim and Precisional has the right to participate in the defense of any such Claim at its expense. In no event shall Consultant settle any Claim without Precisional’s prior written consent (which consent shall not be unreasonably withheld). From the date of written notice from Precisional to Consultant of any such Claim, Precisional shall have the right to withhold from any payments due Consultant under these Terms the amount of any defense costs, plus additional reasonable amounts as security for Consultant’s obligations under this Section 10.
11. LIMITATION OF LIABILITY
NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PRECISIONAL’S AGGREGATE LIABILITY UNDER THESE TERMS AND ANY SOW EXCEED THE FEES DUE TO BE PAID TO CONSULTANT HEREUNDER AND THEREUNDER IN THE TWELVE MONTHS PRECEDING THE CLAIM. THIS SECTION 11 DOES NOT APPLY WITH RESPECT TO A BREACH UNDER 6 (Proprietary Rights) OR SECTION 7 (CONFIDENTIAL INFORMATION) OR THE INDEMNITY OBLIGATIONS UNDER SECTION 10.
All rights and licenses granted to Precisional under or pursuant to these Terms are, and shall otherwise be deemed to be, for purposes of section 365(n) of the United States Bankruptcy Code (the “Code”), licenses to rights in “intellectual property,” as defined under the Code. The parties hereto further agree that, in the event of the commencement of bankruptcy proceedings by or against Consultant under the Code, Precisional shall be entitled, at its option, to retain all of its rights under these Terms pursuant to Code Section 365(n).
13. GENERAL PROVISIONS.
13.1 Governing Law; Jurisdiction and Venue. Unless expressly otherwise set forth in an SOW, these Terms and any dispute, claim or controversy arising therefrom shall be governed by and construed under Delaware law and applicable United States federal law, without reference to any choice/conflict of laws principles or provisions. Any suit or proceeding arising out of or relating to these Terms shall be commenced in the federal and state courts located in New Castle County, Delaware, and each party irrevocably submits to the jurisdiction and venue of such courts. The United Nations Convention on Contracts for the International Sale of Goods will not apply.
13.2 Independent Contractors. Each party is an independent contractor of the other and neither is an employee, agent, partner or joint venturer of the other. Neither party shall voluntarily or involuntarily bind nor attempt to bind the other to any contract or to the performance of any obligation. Neither party may represent to third parties that it has any right to enter into any obligation on the other’s behalf. Consultant shall indemnify and hold Precisional harmless from and against any unauthorized commitments. The parties hereby agree that there are no third party beneficiaries of these Terms.
13.3 Assignment; Binding Effect. These Terms and Consultant’s rights and obligations under these Terms may not be assigned, delegated, or otherwise transferred, in whole or in part, by operation of law or otherwise, by Consultant without Precisional’s express prior written consent. Any purported delegation, assignment or transfer in violation of the above prohibition shall be void. Precisional may assign these Terms to an affiliate or in the event of a merger, reorganization, acquisition or other transfer of all or substantially all of Precisional’s assets or voting securities. These Terms will otherwise be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
13.4 Notices. Any notice, report, approval or consent which may be or is required to be given under these Terms shall be in writing to the address(es) specified in the SOW, and shall be deemed to have been received: (i) when delivered personally; (ii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iii) one (1) day after having been sent by a commercial overnight carrier with written verification of receipt. Either party may change its notice address by written notice to the other. In addition, any notice to Precisional shall also include a copy to: Precisional Inc., Attention: Precisional LLC, 3333 Warrenville Rd, Unit 200, Lisle, IL 60532 USA, Attn: Contracting Department.
13.5 Waiver. Precisional’s (i) waiver of any performance by Consultant; (ii) waiver of any condition of these Terms; or (iii) consent to any breach of these Terms by Consultant, shall (a) be effective only if expressly set forth in a writing signed by Precisional and (b) not constitute or require an ongoing waiver of such performance or condition, or consent to any previous, different or subsequent breach, regardless whether such performance, condition or breach is similar, identical or related, and regardless of the course of dealing which develops or has developed between the parties.
13.6 Headings; Construction. The headings contained in these Terms are for reference purposes only and shall not affect in any way the meaning or interpretation of these Terms. Unless expressly indicated to the contrary, the term “including” (and variations thereof) means “including, without limitation.” Each reference to a signature, approval or a written consent by Precisional shall mean a signature by an authorized representative of Precisional; a signature by an unauthorized representative shall not be binding. Each reference to these Terms shall also include a reference to each SOW between the parties.
13.7 Entire Agreement; Modifications; Severability. Both parties agree that these Terms, together with the SOW, are the complete and exclusive statement of the mutual understanding of the parties, and supersede and cancel all previous written and oral agreements and communications relating to the subject matter of these Terms. No provision of any quotation or other business form employed by Consultant will supersede these Terms, and any such document relating to these Terms shall be for administrative purposes only and shall have no legal effect. No change to these Terms or an SOW shall be effective unless in writing and signed by Consultant and Precisional. If any provision of these Terms is held by a court or arbitrator of competent jurisdiction to be unlawful or unenforceable, the remaining provisions of these Terms shall be enforced to the extent possible.
13.8 Official Language. The official language of these Terms is English. If there is a conflict between versions of these Terms in any other language, the English language version controls.
13.9 Order of Precedence. In case of any inconsistency, conflict, or ambiguity among these
13.10 Responsibility of Consultant. Consultant may not subcontract the Services without the prior express written consent of Precisional. Consultant’s use, if any, of third party agents or subcontractors among its personnel shall not relieve Consultant of any of its obligations under these Terms. Each of Consultant’s personnel shall have executed a non-disclosure agreement binding such personnel to obligations of confidence no less restrictive than those imposed on Consultant hereunder. Consultant shall remain responsible in law for the compliance of its personnel with these Terms and applicable SOWs, and Consultant covenants to seek any and all remedies available in law or in equity in favor of Precisional for any defaults or breaches of its personnel thereof.
13.11 Counterparts. The SOW may be executed in any number of counterparts, each of which will be considered an original and all of which when taken together will constitute a single fully-signed original. Facsimile and other electronic means of signatures on the SOW are binding.
13.12 Ethics; Compliance with Laws and Regulations. Consultant acknowledges the importance of upholding the reputation of Precisional, its products and services. Accordingly, Consultant agrees that it will conduct its business activities authorized under these Terms in accordance with the highest quality of business practice and ethical standards. Consultant will comply with all applicable United States, foreign and local laws, rules and regulations, including but not limited to the United States Foreign Corrupt Practices Act of 1977. Without limiting the generality of the foregoing, Consultant covenants and agrees not to make any payments, directly or indirectly (through intermediaries or otherwise), to government officials or other third parties in an effort to influence the award of any contracts or other benefits to Precisional in violation of any applicable laws. If applicable, Consultant is solely responsible for complying with all applicable export and import regulations and obtaining all necessary export and import licenses or permits for the direct or indirect export or import of any products. Consultant will defend, indemnify and hold Precisional harmless against any liability (including attorneys’ fees) arising out of Consultant’s failure to comply with the terms of this paragraph.
Terms of Purchase
These terms and conditions of the entity identified on the first page of the purchase order, Precisional LLC, or a subsidiary or affiliate thereof, along with the written information on the face page of this purchase order, any attachments or exhibits, and all specifications (per Buyer’s part number), drawings, instructions or other written materials and information referenced therein, will apply to the purchase of the Items described in this purchase order, and are incorporated and made a part hereof (collectively referred to as “PO”). This PO is Buyer’s offer to Seller upon the PO terms and conditions (the “Terms”) and is not an acceptance by Buyer of any offer to sell. Seller will be deemed to have accepted this PO and assented to all of its Terms upon the earlier of Seller’s written acceptance of the PO or Seller’s commencement of performance. This PO expressly limits acceptance to its Terms. If a separate purchase agreement exists between Seller and Buyer regarding the Items covered by this PO, the terms of such agreement will prevail over any inconsistent Terms in this PO.
1. Definitions. “Buyer” means Precisional LLC or any other company identified on the first page of this PO, “Seller” means the person, firm or company identified on the face of this PO. “Item(s)” means the goods and/or services to be furnished by Seller to Buyer as set forth on the face of this PO. “Blanket PO” means a PO that defines all specifics of a purchase except the quantity and delivery dates, which are later communicated in writing by Buyer to Seller. “Release” means Buyer’s PO authorizing Seller to ship a definite quantity of Items scheduled for delivery on a specified date. “Estimated Usage” or “Forecast(ed) Quanti(ty)(ties)” means the quantity of Items for which Buyer reasonably expects to issue Releases under its PO.
2.1 Prices and costs of carriage set forth on the face of this PO or on an attached exhibit will not be increased without Buyer’s written consent. Applicable taxes and other government imposed charges such as duties, customs, fees, tariffs or other surcharges based upon sale or use must be stated separately on Seller’s invoice.
2.2 If Seller decreases prices for its products and services that are comparable in quantity, form and function to the Items sold to Buyer hereunder, Seller shall adjust the price of all such unshipped or unperformed Items to the lower prices.
3. Invoicing and Payment
3.1 Seller may submit invoices to Buyer’s Accounts Payable Department at the address on the front of this PO no earlier than upon shipment or completion of services. Invoices must specify the PO number, order line-Item number (if any), part number, description, quantity, unit price, date of shipment, and such other information as may be reasonably requested by Buyer from time to time.
3.2 Unless otherwise specified in this PO, payment will be net forty-five (45) days from date of invoice, provided that Buyer receives Seller’s correct and valid invoice, and further provided that the Items have been delivered or performed in accordance with this PO and Buyer has accepted them. Buyer is entitled at all times to set-off any amount (e.g., price or cost adjustments) owing from Seller to Buyer or any of its affiliates against any amount payable at anytime by Buyer under this PO.
4. Forecasts, Releases and Scheduling
4.1 If this PO constitutes a Blanket PO, any Item quantities designated as Estimated Usage(s) or Forecast(ed) Quant(y)(ies) are provided for Seller’s planning purposes only and are not binding purchase commitments. Only Releases represent Buyer’s obligation to purchase under the Blanket PO. If this PO constitutes a Blanket PO with scheduled Releases, Seller shall acknowledge each Release promptly in writing to Buyer.
4.2 Upon 15 days written notice to Seller, Buyer may reschedule any Release in whole or in part at no additional charge. Further, Buyer may place any portion of the PO on hold by notice which shall take effect immediately upon receipt. Items placed on hold will be rescheduled for delivery within a reasonable time.
5. Cancellation/Termination for Convenience. Buyer may, by notice, terminate this PO in whole or in part at any time and for any reason. No charge will be imposed for cancellation of orders for Seller standard Items not unique to Buyer. Buyer’s sole liability for cancellation of orders for Items unique to Buyer’s design and/or specification (“non-standard Items”) will be as follows: Any claim for order cancellation charges for non-standard Items must be submitted in writing by Seller to Buyer’s purchasing officer associated with this PO within 30 days following receipt of Buyer’s notice. Seller’s claim may include (i) the cost of unique work in process, (ii) the cost of paying claims to Seller’s vendors for work in process and materials directly allocable to Items cancelled and which cannot be delivered to other customers of Seller or returned to Seller’s vendors. Seller shall wherever possible place such work in process or materials in inventory and sell it to, or use it for other customers. In no event will such claim or Buyer’s liability exceed the total purchase price that Buyer would have paid under this PO for the Items cancelled. Upon payment of Seller’s claim Buyer will be entitled to receive all work and materials paid for. Buyer reserves the right to inspect Seller’s work in process and to audit all relevant documents prior to paying Seller’s claim.
6. Cancellation/Termination for Default. If Seller fails to deliver Items on time, to replace or correct non-conforming Items, or to perform any other obligations under this PO, Buyer may by written notice of default and without liability to Buyer: (i) cancel this PO, in whole or in part, and Seller shall be liable to Buyer for all damages, losses and liability incurred by Buyer directly or indirectly resulting from Seller’s default, or (ii) obtain the Items ordered hereunder from another source with any excess cost resulting therefrom chargeable to Seller, if such default(s) are not cured by Seller within 10 days of Buyer’s notice. Buyer further reserves the right, by written notice of default and without liability to Buyer, to cancel and terminate this PO in whole or in part without liability to Buyer for any of the following: (i) the institution of insolvency, receivership or bankruptcy proceedings against Seller; (ii) Seller’s making an assignment for the benefit of creditors; or (iii) Seller’s dissolution, liquidation or ceasing to do business in the normal course.
7. Effect of Cancellation/Termination. Upon any notice of cancellation or termination hereunder, Seller shall immediately discontinue work and cease placing of orders for materials for that portion of the PO cancelled or terminated, but shall continue to supply any portion of this PO not cancelled or terminated and any other outstanding POs or contracts between Buyer and Seller. Upon cancellation or termination of this PO (in whole or in part) for any reason, at Buyer’s request Seller shall transfer title and deliver to Buyer any completed Items, and any partially completed Items and all unique materials. The price for partially completed Items and unique materials so accepted will be mutually agreed to by the parties pursuant to good faith negotiations, but will in no event exceed the per Item PO price.
8. Packing and Shipment. Seller shall pack all Items for shipment in the manner specified by Buyer or, absent such direction, in a manner that follows good commercial practice, is acceptable to common carriers for shipment at the lowest rate and is adequate to ensure safe arrival. Buyer will notify Seller of the method of shipment. If no instructions are given, Seller shall select the least expensive method. Seller must mark all containers in compliance with Buyer’s Bar Code Requirements Doc. #56723-DP. Items and documentation shipped must comply with the import/export laws and regulations of the SHIP TO: location. Seller must include a duplicate set of shipment documentation inside the shipment container, or the first container of multiple container shipments.
9. Delivery. Seller must deliver Items strictly in accordance with the schedule and quantities set out or referred to in this PO or Release. Time is of the essence of this PO. Unless otherwise specified in this PO, delivery shall be FCA Seller’s Facility (Incoterms 2010) during Buyer’s normal business hours or as otherwise instructed by Buyer. Buyer shall insure against normal risks of transportation. Title and risk of loss or damage to all Items covered by this PO will pass to Buyer upon delivery to the specified delivery location, subject to Buyer’s right to reject and return non-conforming Items at Seller’s risk and expense. If Seller expects to make a delivery that is not on time, Seller shall promptly notify Buyer in writing and (provided that the delay is due to no fault of Buyer) Seller shall (at Seller’s expense) employ accelerated measures to meet the specified delivery date or minimize the delay. Buyer’s acceptance of a delivery delay notice will not be construed as a waiver of any Buyer right or remedy.
10. Inspection and Acceptance. Each Item is subject to inspection and test by Buyer (or its authorized contract manufacturer) upon or after delivery to verify conformance to specifications and material and workmanship requirements. If Buyer rejects any Items, Buyer has the right, effective upon written notice to Seller, to: (a) rescind the PO in its entirety; (b) accept the Items at a reasonably reduced price; or (c) reject all or a portion of the Items and require replacement of the rejected Items. If Seller fails to timely deliver replacement Items, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this PO. The making of payment will not prejudice Buyer’s right of rejection. Upon reasonable notice and at mutually agreeable times, Seller shall permit Buyer to conduct source inspections and/or testing on Seller’s premises, and Seller shall provide Buyer’s of good material and workmanship, free from defects (latent or patent) and be fit and sufficient for the purpose intended; and (iii) be delivered free and clear of any liens or encumbrances. The foregoing warranties are in addition to all other warranties, whether express, implied or statutory and will survive delivery, inspection, acceptance and/or payment by Buyer.
11.1 Seller warrants that the Items covered by this PO will (i) conform to applicable specifications, instructions, drawings, data, Seller samples and other requirements of this PO; (ii) be merchantable, of good material and workmanship, free from defects (latent or patent) and be fit and sufficient for the purpose intended; (iii) be delivered free and clear of any liens or encumbrances; and (iv) not infringe or misappropriate any third party’s patent or other intellectual property rights. The foregoing warranties are in addition to all other warranties, whether express, implied or statutory and will survive delivery, inspection, acceptance and/or payment by Buyer.
11.2 If, (due to no fault of Buyer), any of the Items furnished by Seller do not meet the warranties specified herein or otherwise applicable, Buyer may within one (1) year after its acceptance of the Items (or for such longer period of time as the Items are normally warranted by Seller), at Buyer’s option, require Seller to promptly repair, replace or refund the cost of all non-conforming Items at Seller’s sole cost and expense (including, without limitation, all transport costs). Any repaired Items shall incorporate the most recent engineering changes adopted by Seller. These remedies are in addition to all other remedies at law or in equity or under this PO. All warranties/remedies run to Buyer and its customers.
12. Patents, Copyrights, Trade Secrets, Trademarks, Product Liability. Seller shall, at its own expense, promptly defend, indemnify and hold harmless Buyer, its successors, assigns, customers and users of its products from and against all costs, expenses (including attorney’s fees), and liability incurred due to actual or alleged (i) infringement of any patent, copyright, trade secret, trademark or other intellectual property right or (ii) personal injury or property damage, arising from the use, sale or distribution of the Items. If an injunction issues under any infringement claim, Seller agrees at its expense to promptly (a) procure for Buyer and its customers the right to continue using the Items, (b) modify the Items so that they become non-infringing while retaining existing functionality, or (c) replace the Items with non-infringing products/services of equivalent functionality. The indemnification provisions herein shall not apply to infringement resulting solely from Seller’s compliance with Buyer’s written design specifications (where provided) or Buyer’s gross negligence or willful misconduct.
13. Changes and Configuration. Buyer’s specifications (per Buyer part number) for each Item are made part of this PO. Seller shall not change the specifications, manufacturing process or the site of manufacture or sourcing of any Items without Buyer’s prior written approval. Seller shall cooperate with Buyer to provide configuration control and traceability systems for Items supplied under this PO, as applicable.
14.1 Seller shall comply with all federal, state and local laws and government rules and regulations of the United States and other countries applicable to Seller’s manufacture, sale, import or export of the Items (inclusive of packaging and marking) or the performance of services covered by this PO, including but not limited to: the import and export laws/regulations of the United States Government or any agency, the United States Foreign Corrupt Practices Act of 1977 as amended pursuant to the 1988 Amendments and the International Anti-Bribery and Fair Competition Act of 1998, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the United Kingdom Bribery Act of 2010, and comparable laws/regulations of other countries, as applicable. Likewise, Seller shall comply with all Environmental Regulations governing the manufacture, use and distribution of the Items furnished under this PO at Seller’s own expense. For this purpose, “Environmental Regulations” means all laws, regulations, directives, ordinances, orders and decrees of any kind, adopted or implemented in any country, state, region or jurisdiction governing: (i) the use of hazardous substances; (ii) waste electrical and electronic equipment; (iii) conflict minerals; (iv) batteries, accumulators and waste batteries and accumulators; (v) packaging and packaging waste; and (vi) the registration, evaluation, authorization and restriction of chemicals. Environmental Regulations include, but are not limited to Directive 2011/65/EU of the European Parliament and of the Council of 8 June 2011, Restriction on the Use of certain Hazardous Substances in Electrical and Electronic Equipment, amended in Directive (EU) 2015/863, as may be further amended (“EU RoHS”), European Directive (EC) No 1907/2006 on the Registration, Evaluation, Authorization and restrictions of Chemicals (“EU REACh”), China Order No. 32, 2016, Administrative Measures for the Restriction of Hazardous Substances in Electrical and Electronic Products (“China RoHS”) and notification of use of “Conflict Minerals” under Section 1502 of the United States Dodd-Frank Wall Street Reform and Consumer Protection Act, each as amended. Seller shall provide written certification and proof of its compliance under this Section 14.1 upon request. Seller will defend, indemnify and hold Buyer harmless against any liability (including attorney’s fees) arising out of Seller’s failure to meet any of its foregoing compliance obligations.
14.2 Seller will comply with electronics industry standards related to worker safety and fairness, environmental responsibility and business ethics encompassed in the Responsible Business Alliance Code of Conduct (published at http://www.responsiblebusiness.org/media/docs/RBACodeofeonduct6.0_English.pdf), to the extent that these codes of conduct do not directly conflict with local laws in the jurisdictions where Seller has its business operations and manufacturing facilities.
14.3 Seller is on notice that Buyer may utilize the Items specified in this PO in the manufacture of products destined for sale to the United States Government. Therefore, Seller shall comply with Executive Order No. 11246, and the rules, regulations and relevant orders of the Secretary of Labor pertaining to equal employment laws. To the extent applicable to this PO, the Federal Acquisition Regulation (FAR) clauses are incorporated herein by reference. Acceptance of this PO constitutes certification of the following clauses: FAR 52.222-26 Equal Opportunity; FAR 52.222-35 Affirmative Action for Special Disabled and Vietnam Era Veterans; FAR 52.222-36 Affirmative Action for Handicapped Workers.
15. General Provisions
15.1 No Assignment; Binding Effect. A transfer, assignment or delegation of Seller’s rights or obligations under this PO is void without Buyer’s prior written consent. This PO will otherwise be binding upon and inure to the benefit of the Buyer, Seller, their successors and permitted assigns. Buyer may at any time assign, transfer or subcontract any or all of its rights or obligations under the PO without Seller’s prior written consent.
15.2 Limitation of Liability, Buyer’s Remedies. BUYER SHALL NOT BE LIABLE TO SELLER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Nothing in this PO shall exclude or limit (a) Seller’s liability under these Terms hereof, or (b) Seller’s liability for fraud, personal injury or death caused by its negligence or willful misconduct. Any remedies specified in this PO are cumulative and in addition to any other remedies provided at law or in equity.
15.3 General Indemnification. Seller shall defend, indemnify and hold harmless Buyer and Buyer’s subsidiaries, affiliates, successors or assigns and their respective equityholders, directors, managers, officers, and employees and Buyer’s customers (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with the products purchased from Seller or Seller’s negligence, willful misconduct or breach of the Terms. Seller shall not enter into any settlement without Buyer’s or Indemnitee’s prior written consent.
15.4 Entire Agreement, Modification and Waiver, Severability. This PO constitutes the entire agreement of the parties concerning its subject matter and merges all prior agreements, dealings and negotiations. No modification or additions to the PO Terms will be binding on Buyer unless in writing and signed by Buyer’s authorized representative. Buyer’s waiver of any Seller default will not be considered a waiver of any subsequent default. These Terms may be severable and the invalidity, illegality or unenforceability in whole or in part of any provision will not affect the validity of other provisions.
15.5 Applicable Law. Seller and Buyer agree that this PO, these terms and conditions and any dispute, claim or controversy arising therefrom shall be governed by the laws of the country, state and province in which Buyer has its principal place of business, namely for Precisional LLC or any affiliated company in the United States the laws of the State of Delaware and applicable United States federal law, without reference to “conflict of laws” principles, unless expressly prohibited by local law. The United Nations Convention on Contracts for the International Sale of Goods will not apply in any event.
15.6 Notices. Any notice under this PO shall be in writing, and shall be deemed received (a) when delivered personally, (b) 5 days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (c) 1 day after having been sent by a commercial overnight carrier with written verification of receipt. All notices shall be addressed to the parties’ address on the face of this PO (or as subsequently changed by written notice to the other party); and if to Buyer, then to the Attention of Buyer’s purchasing representative associated with this PO, with a copy to Precisional LLC, 3333 Warrenville Rd, Unit 200, Lisle, IL 60532, Attn: Contracting Department.
15.7 Official Language. The official language of these Terms is English. If there is a conflict between versions of these Terms in any other language, the English language version controls.
Software Support and Maintenance Terms
THESE SOFTWARE SUPPORT AND MAINTENANCE TERMS (“Terms”) SET FORTH THE TERMS AND CONDITIONS UNDER WHICH PRECISIONAL LLC AND/OR ITS AFFILIATE (“PRECISIONAL”) WILL PROVIDE SUPPORT AND MAINTENANCE FOR CERTAIN SPECIFIED PRECISIONAL SOFTWARE PRODUCT(S) (“Software”). IF YOU HAVE ENTERED INTO A SEPARATE WRITTEN SUPPORT AGREEMENT WITH PRECISIONAL, THE TERMS AND CONDITIONS OF SUCH OTHER AGREEMENT SHALL PREVAIL OVER ANY CONFLICTING TERMS OR CONDITIONS IN THESE TERMS.
The applicable Precisional entity and software related to the support and maintenance provided hereunder will be as identified in the applicable order form, which form the avoidance of doubt may be in the form of a sales agreement, order acknowledgment or other similar written arrangement provided or executed by Precisional (any such written arrangement, the “Order Form”).
As used in these Terms, “You” refers to the end-user customer organization which has purchased a license to Software and support and maintenance with respect thereto, and is authorized to use the Software pursuant to the applicable Precisional Software End User License Agreement or another written agreement with Precisional (the applicable licensing document, the “License Agreement”). These Terms are incorporated into, and are subject to all applicable terms and conditions of, the License Agreement, including for the avoidance of doubt, any disclaimers of warranties, limitations of liability, etc.
Provided that You have paid the applicable support and maintenance fees for the Software, Precisional shall provide the support and maintenance services described in these Terms during the maintenance term specified in the Order Form (or, if not specified, for a period of one (1) year) (the “Maintenance Term”). The Maintenance Term may be renewed as specified in the Order Form (or, if not specified, as set forth in Section 6 below).
During the applicable Maintenance Term, Precisional shall use reasonable efforts to correct or provide a workaround for any reproducible programming error in the Software attributable to Precisional with a level of efforts commensurate with the severity of the error, as reasonably determined by Precisional. Upon identification of any programming error, You shall promptly notify Precisional of such error and shall provide Precisional with enough information to reproduce the error, including a listing of output and any other data that Precisional may reasonably request in order to reproduce the error and operating conditions under which the error occurred or was discovered. Precisional shall not be responsible for correcting any errors not attributable to Precisional. For certain Software, Precisional may provide additional or different support services or procedures as set forth in the applicable Software documentation, support handbook, or other written documentation provided by Precisional, if any (the “Additional Support Documentation”). If there is any conflict between these Terms and such Additional Support Documentation with respect to the description of support services or procedures, the provisions of such Additional Support Documentation will prevail. You agree and acknowledge that Precisional may use third parties to the provide support and maintenance services on its behalf. You expressly consent to Precisional permitting such third parties to access Your information and data to perform the support and maintenance services for You.
3. Updates and Upgrades.
During the applicable Maintenance Term, You shall be entitled to receive all upgrades and updates to the Software that are publicly released by Precisional. The contents and timing of all upgrades and updates will be decided by Precisional in its sole discretion. Any such updates and upgrades will be deemed to be “Software” and licensed to You under the terms and conditions of the License Agreement. Updates and upgrades exclude new versions of the software designated by Precisional by a change to the left of the decimal in the version number (e.g., 1.x to 2.x), and any separate modules and other functionality for which Precisional charges a separate fee.
4. Limitations and Exceptions.
The following matters are not covered (and Precisional will not have any obligations with respect to such matters) pursuant to these Terms:
4.1 Any Software for which support and maintenance fees have not been paid;
4.2 Any problem resulting from the misuse, improper use, alteration or damage of the Software;
4.3 Any problem caused by modifications of the Software not made or authorized by Precisional;
4.4 Any problem resulting from any hardware component of Your system or any software not developed by Precisional, including, without limitation: any computers, disk drives, operating systems, network hardware or software, database or any other hardware or third party software;
4.5 Any problem resulting from the combination of the Software with other programming or equipment to the extent that such combination has not been approved by Precisional; and
4.6 Errors in any version of the Software other than the most recent release, provided that Precisional will continue to provide services for superseded releases for a reasonable period (not to exceed ninety (90) days).
5. Payment Default; Termination.
Unless otherwise provided in the Order Form, payment for support and maintenance is payable annually in advance. Should You fail to pay any fees or fail to carry out any other obligation under these Terms or the License Agreement, Precisional may, at its option and in addition to other available remedies, terminate these Terms or suspend services, provided that Precisional first gives You five (5) days’ prior notice in order to permit You to cure Your default. In addition, services will automatically terminate with respect to any Software that is no longer licensed for use under the License Agreement, whether as a result of expiration or termination of such License Agreement, or replacement of the applicable Software with new releases.
Unless otherwise specified in the Order Form, support and maintenance services shall automatically renew for additional periods of one year provided You have made payment for the upcoming year prior to the renewal date. If You have not made payment prior to the renewal date, without further action by Precisional these Terms shall automatically terminate with respect to the Software for which You have not paid. Any renewals after an expiration of a Maintenance Term may be subject to the then-current lapses fee rates.
7. Changes and Updates to Fees and Terms.
At any time following the expiration of the Maintenance Term, fees for support and maintenance may be changed, provided that Precisional gives You at least five (5) days’ prior written notice of the change. Such notice may be made by posting the revised fees on Precisional’s website. Precisional also reserves the right to modify or terminate these Terms upon five (5) days’ written notice to You. In such event, You have the right to terminate support and maintenance for all Software by giving written notice and to receive, as Your sole and exclusive remedy, a pro-rata refund of fees paid for the balance of the applicable Maintenance Term following the effective date of termination of these Terms.