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SUPPLY CHAIN ENGINEERING, INC. (SCE)

TERMS AND CONDITIONS

1. CONFIDENTIALITY

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.

4. PAYMENT

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 this Agreement.

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 infringement.

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 hereunder.

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 otherwise.

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.

 

 

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