SUPPLY CHAIN ENGINEERING, INC. (SCE)
TERMS AND CONDITIONS
A. SCE acknowledges that it may acquire information and materials
about Customer, including, but not limited to, its business plan,
data processing techniques, computer programs, experimental works
and lists of its customers and suppliers. Customer acknowledges
that it may acquire information and materials about SCE, including,
but not limited to, its methods, systems, technology, and know how.
B. Both parties acknowledge that all such knowledge, information
and material so acquired are the trade secrets and confidential
and proprietary information of the other party (hereafter "Confidential
Information"). Both parties agree, during and after the term
of this Agreement, to hold such Confidential Information in strict
confidence and not to disclose it to others or use it in any way
without the other party's prior written authorization.
C. The parties further agree to take all reasonable precautions
to protect the confidentiality of the Confidential Information,
including, without limitation, implementing and enforcing operating
procedures to minimize the possibility of unauthorized use or copying
of the Confidential Information. However, a party may disclose Confidential
Information without such authorization to an employee or agent of
the party who must have such information to perform its obligations
under this Agreement, provided that the employee or agent has been
advised of the confidential nature of such information.
D. SCE and Customer shall have no obligation to keep confidential
or refrain from using any information which: (a) was in its possession
or known to it, without an obligation to keep it confidential, before
such information was disclosed to it by the other party; (b) is
or becomes public knowledge through no fault of its own; (c) is
independently developed by or for it; (d) is disclosed by the other
party to others without any restriction on use and disclosure; or
(e) is or becomes lawfully available to it from a source other than
the other party.
2. TERM OF AGREEMENT
This Agreement commences on the date set forth below and shall
continue until the earlier to occur (i) full performance by both
parties hereunder, or (ii) two years from the date hereof, unless
earlier terminated by one party under the terms of this Agreement.
3. TERMINATION OF AGREEMENT
Termination for Cause. If Customer or SCE is in material default
of its obligations under this Agreement, the non-breaching party
shall have the right to deliver to the breaching party written notice
specifying that a breach has occurred and providing in detail the
particulars of the alleged breach. The party in breach shall have
thirty (30) days to cure the alleged breach (ten (10) days if the
alleged breach relates to the payment of any amounts due hereunder)
or such other period as may be agreed to by the parties. If such
breach is not cured within such period, then the non-breaching party
shall be entitled to exercise all of its rights and remedies pursuant
to this Agreement, including the right to terminate this Agreement.
If the System is unacceptable to Customer, Customer's sole remedy
shall be replacement or repair of System by SCE. If System cannot
be rendered acceptable after reasonable efforts by SCE to replace
or repair the System, Customer shall have the right to terminate
the Agreement and SCE's aggregate liability to Customer shall not
exceed the amount paid to SCE for the System.
A. The payment terms are as follows:
Hardware and Consumables Payments
Payments Due Within 20 days from Receipt of Invoice
(invoices are not sent until delivery has been made)
Software and "Custom" Engineering Projects
STEP 1 - 100% of System Requirements Definition (SRD) invoiced
Upon Acceptance of SRD and Project Initiation
STEP 2 - 100% of system hardware ordered and invoiced (when delivered)
STEP 3 - 50% of engineering services invoiced
STEP 4 - Remaining invoiced upon solution acceptance
B. In addition to the foregoing compensation, Customer will reimburse
SCE all reasonable travel expenses, including living expenses during
approved travel, and mileage billed at 44.5 cents per mile that
is incurred by SCE in performing hereunder, provided that such travel
has been approved by Customer and conforms with the requirements
of SCE’s travel policy. All requests for expense reimbursements
must be supported by copies of invoices or other documentation reasonably
acceptable to Customer.
C. Interest will accrue at 1.5% per month for any payments which
are more than thirty (30) days past due.
5. INDEMNIFICATION AGAINST PERSONAL INJURY AND PROPERTY DAMAGE
A. Each party shall indemnify the other against any and all liability
for personal injuries and property damage arising out of the performance
of such party or its employees, and representatives pursuant to
B. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY, OR ANY AFFILIATE
THEREOF BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY
SPECIAL, INCIDENTAL, INDIRECT, STATUTORY, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION FOR ANY LOST
PROFITS, BUSINESS OR REVENUE, LOSS OF USE OR GOODWILL, OR OTHER
LOST ECONOMIC ADVANTAGE, ARISING OUT OF OR RELATED TO THIS AGREEMENT
OR THE BREACH HEREOF, WHETHER SUCH CLAIMS ARE BASED ON BREACH OF
CONTRACT, STRICT LIABILITY, TORT, ANY FEDERAL OR STATE STATUTORY
CLAIM, OR ANY OTHER LEGAL THEORY, AND EVEN IF THE OTHER PARTY KNEW,
SHOULD HAVE KNOWN, OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THE PARTIES HAVE AGREED THAT THE LIMITATIONS SPECIFIED
IN THIS SECTION 5 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY
SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL
PURPOSE. SCE’S AND CUSTOMER’S LIABILITY FOR DAMAGES
HEREUNDER FOR ANY CAUSE WHATSOEVER SHALL IN NO EVENT EXCEED THE
AMOUNTS RECEIVED BY EITHER PARTY UNDER THIS AGREEMENT.
6. WARRANTIES AND DISCLAIMERS.
A. SCE hereby assigns to Customer, to the extent possible, the
benefits of any warranties provided to SCE by the manufacturer(s)
of the Product. SCE warrants to Customer for a period of thirty
days following the performance of any installation work by SCE,
that such work will be performed in a good and workman-like manner.
SCE’s obligations and liability under this warranty is conditioned
upon the receipt of prompt notice of defects as to parts and/or
workmanship from Customer, and is limited to repairing or, at SCE’s
sole option, to replacing the Product. This warranty shall be void
if the Product is damaged or rendered unusable by the willful act,
negligence and/or tampering of persons other than SCE. SCE makes
no warranty or guaranty for any hardware or third party materials.
Customer understands that SCE is not responsible for, and will have
no liability for, hardware, software, or any other items or any
services provided to customer by any persons other than SCE. The
foregoing is a limited warranty and it is the only warranty by SCE.
SCE disclaims all warranties, express or implied, including all
implied warranties of merchantability and fitness for a particular
purpose and all warranties or indemnities for patent or copyright
B. In no event shall either party be liable for any indirect, incidental,
special or consequential damages, including loss of profits, revenue,
data, or use, incurred by either party or any third party, whether
in an action in contract or tort, arising out of or related to this
agreement, or the services provided hereunder even if the other
party or any other person has been advised of the possibility of
such damages. SCE’s liability for damages hereunder for any
cause whatsoever shall in no event exceed the amounts received by
SCE from the customer. SCE shall not be responsible for any loss,
damage or expense of any kind including loss of use of the product
or data and storage media used therewith, caused directly or indirectly
by the use or performance of the product or by any services provided
7. ENTIRE AGREEMENT. This Agreement, (together with any attached
Exhibits) constitutes the entire agreement and understanding of
the parties with respect to the subject matter hereof and supersedes
all prior oral or written agreements, arrangements, and understandings
with respect thereto. No representation, promise, inducement, statement
or intention has been made by any party hereto that is not embodied
herein, and no party shall be bound by or liable for any alleged
representation, promise, inducement, or statement not so set forth
herein. By reference or otherwise, this Agreement does not constitute
an acceptance by SCE of any inconsistent terms contained in Customer’s
proposal, counter offer or any purchase order. This Agreement expressly
limits acceptance to the terms stated in this Agreement. Any additional
or differing terms, whether or not materially different, set forth
in any communication from the Customer are hereby expressly rejected.
8. GENERAL PROVISIONS
A. Modifications to Agreement: Modifications and amendments to
this Agreement, including any exhibit or appendix hereto, shall
be enforceable only if they are in writing and are signed by authorized
representatives of both parties.
B. Waiver: No term or provision of this Agreement shall be deemed
waived and no breach excused unless such waiver or consent is in
writing and signed by the party claimed to have waived or consented.
C. SCE is an Independent Contractor: The parties acknowledge that
SCE will perform its obligations hereunder as an independent contractor.
The manner and method of performing such obligations will be under
SCE's sole control and discretion; Customer's sole interest is in
the result of such services. It is also expressly understood that
SCE's employees and agents, if any, are not Customer's employees
or agents, and have no authority to bind Customer by contract or
D. Notices: All notices and other communications required or permitted
under this Agreement shall be in writing and shall be deemed given
when delivered personally, or five (5) days after being deposited
in the United States mail, postage prepaid and addressed as set
forth below the parties signatures.
E. “Force Majeure”: Notwithstanding anything in this
Agreement to the contrary, SCE shall not be liable for any delay
or failure to maintain the Equipment or provide service hereunder,
if the delay or failure is caused by war, riots, civil commotion,
fire, flood, earthquake, or any act of God, or the failure of any
third party subcontractor, or third party hardware, software, network
system equipment, wiring, electrical systems or utilities, or other
causes beyond SCE’s reasonable control. If any third party
subcontractor providing service with respect to this Agreement,
ceases to provide such services, and SCE cannot find a suitable
replacement vendor then, SCE shall have the right to terminate the
Agreement, by providing thirty days prior written notice to Customer.
F. Attorneys’ Fees and Costs: In the event of any dispute
arising out of the subject matter of this Agreement, the prevailing
party shall recover, in addition to any other damages assessed,
its reasonable attorneys' fees and costs incurred in litigating,
arbitrating, or otherwise settling or resolving such dispute.
G. Survival: The provisions of paragraphs 1, 4, 5, 6, and 7 shall
survive the termination of this Agreement.