These terms and conditions (these “Terms and Conditions”), together with the Proposal and/or Quotation, its attachments and related documents, and the invoice (if any), or other contract entered into between the Seller and Buyer identified below which reference this General Terms and Conditions constitute and govern the agreement (the “Agreement”) between us, Quantronix, Inc. (“Seller”, and/or “Quantronix”), and you (“Buyer” and/or “the Client”). Provision of products and services under this Agreement is made subject to these Terms and Conditions, and any inconsistent or additional terms or conditions contained in any acknowledgment, or other form used by the Client, are hereby rejected.
1.1. In this Agreement the following words and phrases shall have the following meanings:
a) Services means the services or creation or installation of products set out in any relevant Quantronix proposal, estimate, quote, purchase order, invoice, or other document which references this Agreement;
b) Proposal means the proposal, estimate or fee quote, if applicable, provided to the Client by Quantronix relating to the Services;
c) Intellectual Property Right(s) means copyrights, trademarks (registered or unregistered), patents, patent applications (including the right to apply for a patent), service marks, design rights (registered or unregistered), trade secrets and other like rights howsoever existing;
d) Confidential Information shall mean all information in whatever form or manner presented which: (i) is disclosed pursuant to, or in the course of the provision of Services pursuant to, this Agreement; and (ii) is disclosed in writing, electronically, visually, orally or otherwise and marked or has been told to Client is confidential or is information to which would be reasonably considered to be confidential.
1.2. The headings in this agreement are for convenience only
2. THE SERVICES
2.1. Offer and Acceptance. The Proposal is submitted to the Client, only, and may not be transferred or assigned. The offer set forth in the Proposal will remain open for 60 days from the submission date. The offer is conditional and may be withdrawn at any time prior to acceptance.
2.2. The Service. Quantronix shall provide the Services to the Client in accordance to with the terms of this Agreement which is expressly incorporated into any Proposal between the Parties.
2.3. Inconsistency. In the event of any inconsistency between the terms of this Agreement and the Proposal, the terms of the Proposal shall take precedence.
2.4. Risk of Loss. Buyer acknowledges and accepts all risks of loss of products shipped or delivered to Buyer upon the moment such products are shipped to the Buyer.
2.5. Changes in Job Specifications. Unless otherwise agreed to by Seller in an addendum hereto, the product(s) purchased by Buyer shall meet Seller’s standard specifications and changes to the original specifications may delay delivery and/or necessitate a price increase.
2.6. Clients Use Only. The Services provided by Quantronix under this Agreement and/or memoranda, engineer data, calculations, measurements, estimates, notes and other material prepared by Quantronix in the course of providing or estimating the Services to the Client, together with status summaries or any other communication in any form describing the work or services performed (“Reports”) shall be only for the Client’s use and benefit and shall be considered as Confidential.
2.7. 3rd Party Obligations. In agreeing to provide the Services pursuant to this Agreement, Quantronix does not abridge, abrogate or undertake to discharge any duty or obligation of the Client to any other person.
3. QUANTRONIX WARRANTY
3.1. Quantronix warrants exclusively to the Client that the Services shall be performed in a manner consistent with that level of care and skill ordinarily exercised by other companies providing like services under similar circumstances.
3.2. In the event of a breach of warranty set out in 3.1 above Quantronix, shall, at its own expense, perform services of the type originally performed as may be reasonably required to correct any defect in Quantronix’s performance provided that Quantronix received written notice within three (3) months after completion of Service.
3.3. In addition to the above warranty Quantronix provides to Client the attached LIMITED WARRANTY on all Quantronix manufactured products, parts, and services. Integrated parts, components, or external accessories not manufactured by Quantronix are not included as part of this warranty.
3.4. Quantronix makes no other warranty, express or implied. All other warranties, conditions and other terms implied by statute or common law (including but not limited to any implied warranty of merchantability or fitness for a particular purpose) are, to the fullest extent permitted by law, excluded from this Agreement. No performance, deliverable, oral or other information or advice provided by Quantronix, its agents, sub-contractors, employees or other representatives will create a warranty or otherwise increase the scope of any warranty provided.
4. CLIENT WARRANTIES AND OBLIGATIONS
4.1. The Client represents and Warrants:
a) Authority. It has the power and authority to enter into this Agreement and procure the provision of the Services;
b) Representations. Any information, diagrams, specs, code, or related documents it (or any agent or representative of the Client) provides to Quantronix is true, accurate representative, complete and is not misleading in any respect. That Client acknowledges and accepts that Quantronix will rely on such information or materials provided by Client, without a duty to confirm or verify the accuracy or completeness thereof, as a basis to perform the Services;
c) 3rd Party Rights. The Client warrants the following: (1) it has the right to release the information provided to Quantronix, (2) Quantronix has the right to use the information to provide the Services, and (3) the release of the information will not, in any circumstances, infringe any legal rights (including Intellectual Property Rights) of any third party. In the event that the Service interfaces, integrates, or requires information from third parties the Client shall cause any such third party to acknowledge and agree to the use, interface, integration, or providing information as required prior to and as a condition precedent to receiving the information, integration, or interface. The Client shall hold Quantronix harmless from any and all claims made against it by the Client (its agents or representatives) and any 3rd party regarding the use of any information provided by the Client to Quantronix or from the breach of this section.
4.2. The Client further agrees to:
a) Cooperate. To cooperate with Quantronix in all matters relating to the Services and appoint a manager in relation to the Services who shall be duly authorized to provide instructions to Quantronix on behalf of the Client and to bind the Client contractually as required;
b) Provide Information. To provide Quantronix (including its agents, sub-contractors and employees), at its own expense, any and all specs, information, interface information, all barcoding, material or other documentation necessary or requested for the execution of the Services in a timely manner sufficient to enable Quantronix to provide the Services in accordance with this Agreement. The Client acknowledges that any documents or materials provided to Quantronix may become damaged or destroyed and undertakes to hold Quantronix harmless from any and all responsibility for an alteration to the document or material, damage or destruction. In the event that special care or handling is required for anything provided to Quantronix by the Client the Client shall make such care or handling known to Quantronix prior to providing it.
c) Cost Modifications. The Client acknowledges and accepts that Quantronix when creating a bid or the Proposal relies on information provided to it by The Client and in the event that all information was not known to Quantronix prior to beginning the work order or the Proposal, and it is discovered that additional work or products not originally considered is necessary, Quantronix shall have the right to submit a change order charging the Client for the additional work necessary to complete the Proposal. The Client shall have the right to accept or deny the change order but if denied Quantronix is under no obligation to perform the additional work or provide the additional products identified in the change order.
d) Provide Tax Status Information. The Client will be charged automatically a sales tax at the rate provided for in the county, state, country, or region as applicable for each sale. The Client will pay such sales tax unless prior to the sale being executed (each sale – not a one-time disclosure) the Client notifies Quantronix in the purchase order that it believes it may be tax exempt. In the event the sales tax was paid and later it is discovered that the Client is exempt from the tax it shall be the Client’s responsibility to reimburse Quantronix for the tax it paid and then seek reimbursement from the county, state, country, or region, for the sales tax collected and paid.
e) Feedback. To provide instructions and feedback to Quantronix in a timely manner.
f) Access to Premises. To provide Quantronix (including its agents, sub-contractors and employees) with access to its premises as may be reasonably required for the provision of the Services;
g) Safety Briefing. To provide Quantronix and its agents, sub-contractors, and employees with information concerning all health and safety rules and regulations and other reasonable security requirements that may apply at any relevant premises at which the Services are to be provided;
h) Notification of Harm. To notify Quantronix promptly of any risk, safety issues, or incidents in respect of any item delivered by the Client, or any process or systems used at the Clients premises to which the Services are being provided;
i) Import/Export Restrictions. To inform Quantronix in advance of any applicable import/export restrictions or government secrecy requirement that may apply to the Services to be provided;
j) Licensing and Regulations. To obtain and maintain all necessary licenses and consents in order to comply with applicable legislation and regulation in relation to the Services. The Client should be aware and is hereby notified that there may be certain “Legal-for-Trade” requirements and regulations if the Services are used in a manner to determine charges. The Client should be aware of and comply with all Legal-for-Trade regulations. Not all products of Quantronix have Legal-for-Trade Type-Approval.
5. CHARGES, INVOICING, PAYMENT, AND TITLE
5.1. The Client shall pay Quantronix the charges incurred or set out in the Proposal, if applicable, or as otherwise contemplated for provision of the Services (the Charges).
5.2. The Charges are expressed exclusive of any applicable taxes. The Client shall pay any applicable taxes on the Charges at the rate prescribed by law, on the issuance by Quantronix of a valid invoice. Section 4.2d in this Agreement shall apply.
5.3. The Client agrees to reimburse Quantronix for any shipping, freight, or custom clearance fees relating to the Services.
5.4. Quantronix shall invoice the Client for the Charges and expenses, if any. The Client shall pay each invoice within thirty (30) days upon receipt.
5.5. If any invoice is not paid on the due date for payment, Quantronix shall have the right to charge, and the Client shall pay, interest on the unpaid amount, calculated from the due date of the invoice to the date of receipt of the amount in full at a rate equivalent to 1.5% per month or 18% per annum.
5.6. Legal possession and title of any products sold to the Client by Quantronix shall pass to the Client upon shipment being delivered to the carrier.
6. INTELLECTUAL PROPERTY RIGHTS
6.1. All Intellectual Property Rights belonging to a party prior to entry into this Agreement shall remain vested in that party. Nothing in this Agreement is intended to transfer or grant any Intellectual Property Rights from either party to the other. Furthermore, the right to use certain software and firmware, if any, under the Agreement is a non-exclusive, non-transferable license.
6.2. Any use by the Client (or the Client’s affiliated companies, agents, or subsidiaries) of the name Quantronix, CubiScan, QMI, or any of Quantronix trademarks, logos, or brand names for any reason other than internal references to the use of the Services in its ordinary course must be prior approved in writing by Quantronix. Any other use of Quantronix trademarks, logos or brand names is strictly prohibited and Quantronix reserves the right to terminate this Agreement immediately as a result of any such unauthorized use.
6.3. In the event of a claim against the Client and/or Quantronix based upon a patent, trademark, or copyright infringement, or misappropriation of trade secret and concerning a product or service provided by Quantronix, Quantronix shall have the first right to defend, at its expense, and to settle and/or otherwise resolve the dispute, and (if applicable), to pay the costs and damages incurred in any settlement awarded as a result of any action under such claim. Notwithstanding anything herein to the contrary, Quantronix obligation to the Client shall be expressly limited to an amount not to exceed the purchase price of the Services or equipment and materials sold hereunder which constitute the alleged infringement.
7.1. The Client acknowledges that the Client may become exposed to or familiar with information and/or concepts that are proprietary to Quantronix related to the Services, the related software and/or license, the delivery of confidential materials such as but not limited to: instruction books, manuals, proposals, specs, product development plans, source code, design documents, drawings, venders, pricing, fixed costs, financial, diagnostics, service agreements, interfacing, sensitive materials, and/or other documentation or information. Buyer therefore agrees and covenants, for valuable consideration, that no proprietary rights are acquired under this Agreement, and that it shall not use, at any time, for itself, nor shall it disclose to any other person, any of the confidential knowledge or information acquired pursuant to this purchase or the parties ongoing contractual relationship, unless use of such information is necessary to comply with ongoing contractual obligations to the Client or in regards to using the Services in its normal course.
7.2. The Client shall not, except for its own use, copy or duplicate any proprietary documents. The Client agrees to inform its employees, representatives and agents of the confidential and proprietary nature of such items, and to adopt reasonable and appropriate measures for the protection of Quantronix confidential and proprietary rights therein.
7.3. The Client agrees that the Client shall not disassemble, decompile or reverse engineer the product(s) provided hereunder.
7.4. The Client agrees that the harm to Quantronix and remedies available may be inadequate to protect against a breach of confidentiality and that in addition to other remedies available by law Quantronix shall be entitled to equitable relief by way of injunction (temporary or permanent) in the event of an actual or threatened or anticipated breach of confidentiality.
7.5. The provisions of this confidentiality shall remain in effect for a period of five (5) years beginning on the date in which the Client received the confidential information and shall survive the termination or expiration of this Agreement.
7.6. The provisions of this Confidentiality shall not apply to any Confidential Information which: (i) is or becomes public knowledge other than by the breach of this Agreement; (ii) is received by a third party who lawfully acquired it and who is under no obligation restricting its disclosure; or (iii) is independently developed by the Client without access or benefit to or from the relevant Confidential Information.
8.1. No amendment to this Agreement shall be effective unless it is in writing, expressly stated to amend this Agreement and signed by an authorized signatory of each party.
9. FORCE MAJEURE
9.1. Neither party shall be liable to the other for any delay in performing or failure to perform any obligation under this Agreement to the extent that such delay or failure to perform is a result of:
a) War, whether declared or not, civil war, riots, revolution, acts of terrorism, military action, sabotage and/or piracy;
b) Natural disasters such as but not limited to: violent storms, earthquakes, tidal waves, floods and/or lightning, explosions, and fires;
c) Strikes, labour disputes, shortage of materials, utility and communication failures;
d) Crimes committed by third parties such as but not limited to: theft, destruction of property, conspiracy, piracy, and hacking.
9.2. The same shall apply if in the event an essential subcontractor or agent of Quantronix is unable to perform the Services due to force majeure.
9.3. A party whose performance is affected by an event of Force Majeure described above shall:
a) Promptly notify the other party in writing of the Force Majeure Event and the cause and the likely duration of any consequential delay or non-performance of its obligations;
b) Use all reasonable endeavors to avoid or mitigate the effect of the Force Majeure Event and continue to perform or resume performance of its affected obligations as soon as reasonably possible; and
c) Continue to provide services that remain unaffected by the Force Majeure Event.
9.4. If the Force Majeure Event continues for more than sixty (60) days after the day on which it started, and if such event has materially altered the performance of the Agreement, the non-affected party may terminate this Agreement by giving at least ten (10) days’ written notice to the affected party and each party shall be responsible to comply with all terms and conditions related to the Services which were provided up to the date of termination.
10. LIMITATIONS AND EXCLUSIONS OF LIABILITY
10.1. In no event will Quantronix be liable to the Client or to any other person or entity for any special, consequential, incidental, or other damage, however caused, direct or indirect, whether for breach of contract, negligence or under any other legal theory, including lost profits, and whether or not Quantronix has been advised of the possibility of such damage. Quantronix sole and exclusive liability and the Clients sole and exclusive remedy for breach of this Agreement is the repair or replacement of defective hardware or software. If Quantronix is unable to make the necessary repairs within a reasonable period of time, at Quantronix option, it shall either refund the monies paid or provide a replacement.
10.2. THE MAXIMUM AGGREGATE LIABILITY OF QUANTRONIX IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND BREACH OF STATUTORY DUTY) OR OTHERWISE FOR ANY BREACH OF THIS AGREEMENT OR ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THE SERVICES TO BE PROVIDED IN ACCORDANCE WITH THIS AGREEMENT SHALL NOT EXCEED QUANTRONIX’S TOTAL FEE FOR THE SERVICES RENDERED ON THE PROJECT CREATING THE LIABILITY.
10.3. Any claim by the Client against Quantronix must be made within ninety (90) days after the earlier of (i) the date that the Client first becomes aware of any circumstances giving rise to any such claim, or (ii) within one year from the date of the incident or date in which Quantronix delivers the applicable Services. Failure to give such notice of claim within the applicable period set forth herein shall constitute a bar or irrevocable waiver to any claim, either directly or indirectly, in contract, tort or otherwise in connection with the provision of the Services under this Agreement.
10.4. Nothing in these limitations limits or excludes any liability for fraudulent misrepresentation.
11.1. The Client shall indemnify and hold harmless Quantronix, its officers, employees, agents, representatives, contractors and sub-contractors from and against any and all claims, suits, liabilities (including costs of litigation and attorney’s fees) arising, directly or indirectly, out of or in connection with:
a) Any claims or suits by any governmental authority or others for any actual or asserted failure of the Client to comply with any law, ordinance, regulation, rule or order of any governmental or judicial authority;
b) Claims or suits by any governmental authority or others for any actual or asserted failure of the Client to comply with any law, ordinance, regulation, rule or order of any governmental or judicial authority;
c) Claims or suits for personal injuries, loss of or damage to property, economic loss, and loss of or damage to Intellectual Property Rights incurred by or occurring to any person or entity and arising in connection with or related to the Services provided hereunder by Quantronix, its officers, employees, agents, representatives, contractors and sub-contractors;
d) The breach or alleged breach by the Client of any of its obligations set out in this Agreement;
e) Any claims made by any third party for loss, damage or expenses of whatsoever nature and howsoever arising relating to the performance, purported performance or non-performance of any Services to the extent that the aggregate of any such claims relating to any one Service exceeds the limit of liability set out above;
f) any claims or suits arising as a result of any misuse or unauthorized use of any Report or confidential information issued by Quantronix or any Intellectual Property Rights belonging to Quantronix (including trade marks); and
g) any claims arising out of or relating to any third party’s use of or reliance on any Reports, analyses, conclusions of the Client (or any third party to whom the Client has provided the Reports) based in whole or in part on the Reports, if applicable.
11.2. The obligations set out in this clause 11 shall survive the termination or expiration of this Agreement.
12. INSURANCE POLICIES
12.1. Each party shall be responsible for the arrangement and costs of its own company insurance which includes, without limitation, professional indemnity, employer’s liability, motor and property insurance.
12.2. The Client acknowledges that although Quantronix maintains worker’s compensation and employer’s liability insurance, such insurance does not cover any employees of the Client or any third parties who may be involved in the provision of the Services. If the Services are to be performed or requires access to the premises belonging to the Client or third parties Quantronix’s insurance does not provide coverage for non-Quantronix employees. The Client should use its reasonable discretion in making sure it is properly covered with an insurance policy that will protect it from liability to employees or third parties who may become injured or harmed from an act related to the Services.
13.1. The Agreement shall continue, unless terminated earlier in accordance with this clause or until the Services and each Party’s obligations hereunder have been provided.
13.2. This Agreement may be terminated by:
a) Either Party if the other continues in material breach of any obligation imposed upon it hereunder for more than thirty (30) days after written notice has been given by that Party using recorded delivery or courier and requesting the other party to remedy such breach;
b) Quantronix on written notice to the Client in the event that the Client fails to pay any invoice by its due date and/or fails to make payment after a further request for payment; or
c) Either party on written notice to the other in the event that the other becomes insolvent and makes any voluntary arrangement with its creditors, or becomes subject to an administration order or files for relief under the bankruptcy code, or an encumbrancer takes possession of secured property due to nonpayment or other material breach, or a receiver is appointed to control any of the property or assets of the other, or the other party threatens to cease and/or carry on its obligations or commitments.
13.3. In the event of termination of the Agreement for any reason, and without prejudice, and in addition to any other rights or remedies the parties may have, the Client shall pay Quantronix for all Services performed, products and parts produced or manufactured, whether completed or incomplete, up to the date of termination. This obligation shall survive the termination or expiration of this Agreement.
13.4. Any termination or expiration of the Agreement shall not affect the accrued rights and obligations of the parties nor shall it affect any provision which is expressly or by implication intended to come into force or continue in force on or after such termination or expiration.
13.5. Acceleration If the Client defaults hereunder, Quantronix may declare the Clients obligation immediately due and payable together with accrued interest, with or without notice. The Client waives presentment and all notices and demands to which it might be entitled to under applicable law. Quantronix may also exercise all rights available to it under this Agreement and/or law, and the Client agrees that such rights shall be cumulative.
14. ASSIGNMENT AND SUB-CONTRACTING
14.1. Quantronix reserves the right to delegate the performance of its obligations hereunder and the provision of the Services to one or more of its affiliates and/or sub-contractors when necessary.
14.2. The Client may not assign the Agreement or transfer its rights or obligations without written approval from Quantronix.
15. GOVERNING LAW AND DISPUTE RESOLUTION
15.1. This Agreement shall be governed by the laws of the state of Utah. All actions, proceedings and other disputes arising out of or in any way related to this Agreement shall be submitted to, and the parties agree hereby to the jurisdiction of the state and federal courts of the state of Utah, and agree to venue in the state of Utah. Prior to the commencement of any action, the parties agree to first engage in good faith in mediation in the state of Utah, and share, equally, the expenses of mediation. Nothing herein shall prevent the parties from agreeing to resolve any dispute by resorting to binding arbitration.
16.1. UCC Applicability. Services rendered under the Agreement shall be deemed “goods” within the meaning of the Utah Uniform Commercial Code.
16.2. Full Force and Effect. If any provision of the Agreement is or becomes invalid, illegal or unenforceable, such provision shall be severed and the remainder of the provisions shall continue in full force and effect as if the Agreement had been executed without the invalid illegal or unenforceable provision. If the invalidity, illegality, or unenforceability is so fundamental that it prevents the accomplishment of the purpose of this Agreement, the parties shall immediately commence good faith negotiations to agree on an alternative term or condition.
16.3. No Agency. Nothing in the Agreement and no action taken by the parties under the Agreement shall constitute a partnership, association, joint venture or other co-operative entity between the parties, or constitute any party to be the agent or legal representative of the other.
16.4. Waiver. The failure of any party to insist upon strict performance of any provision of the Agreement, or to exercise any right or remedy to which it is entitled, shall not constitute a waiver and shall not cause a diminution of the obligations established by the Agreement. A waiver of a breach or multiple breaches shall not constitute a waiver of any subsequent breach. No waiver of any right or remedy under the Agreement shall be effective unless it is expressly stated to be a waiver and communicated to the other party in writing.
16.5. Entire Agreement. The Agreement contains the entire agreement between the parties and supersedes all prior or contemporaneous proposals, agreements or communications, oral or written. No purchase order, invoice, statement or other similar document will add to or vary the terms of this Agreement.
16.6. Modifications. No modification, waiver or amendment of any of these terms and conditions, including any assignment of Client’s rights and responsibilities hereunder, shall be binding upon Quantronix unless agreed to in writing, signed by an authorized agent, and specifically mentions that it is modifying these Quantronix General Terms and Conditions.
16.7. Binding Effect. Each party acknowledges that in entering into the Agreement it has not relied on any representation, warranty, collateral contract or other assurance (except those set out or referred to in the Agreement) made by or on behalf of any other party before the acceptance or signature of the Agreement) made by or on behalf of any other party before the acceptance or signature of the Agreement.
16.8. Security Agreement. Upon execution, the Agreement shall constitute a Security Agreement under the UCC and any other applicable laws, and the products sold hereunder shall serve as security for the unpaid portion of the purchase price and all other costs and charges hereunder. The Client grants to Quantronix a security interest in all hardware, software and other goods sold hereunder. To perfect, continue or assign said interest, the Client agrees to complete, execute and deliver to Quantronix, without additional consideration, and all financing statements and other documents requested by Quantronix to secure its interest in the products.
16.9. Legal Fees. If the Client defaults, in addition to any other relief, Quantronix shall be entitled to recover its reasonable attorney fees (whether or not suit or arbitration is instituted) and court costs and other litigation costs, if any, incurred by Quantronix to enforce this agreement.