Proposal Terms and Conditions
OFFER AND ACCEPTANCE
The Quoted Price(s) for the Work (except for any manufacturer/distributor price increases which occur for Goods included as a part of the Work) shall remain valid for thirty (30) days from the date hereof, unless otherwise specified to the contrary in the Quote. The Quote does not constitute a firm offer, but is an invitation to place an order for the Work at the Price(s) Quoted, and shall not be binding upon Advanced Automation until finally accepted by Advanced Automation.
OWNERSHIP OF DOCUMENTS RELATED TO WORK PREPARED BY ADVANCED AUTOMATION
Plans, schematics, specifications, renderings, computer produced images and data prepared by Advanced Automation in connection with performance of the Work are instruments of service and shall remain the property of Advanced Automation, and shall not be used by Client for any purpose other than the Work performed hereunder by Advanced Automation without the express written approval of Advanced Automation.
PAYMENT TO ADVANCED AUTOMATION: TERMS
Unless otherwise stated to the contrary in the Quote, payments to Advanced Automation in connection with the Work shall be made as follows: 50% down at the time the Order is placed by Client with Advanced Automation for the Work; 40% at the time Goods included as a part of the Work are delivered to Client; and, the remainder shall be due and owing to Advanced Automation within fifteen (15) business days (Monday through Friday excluding national holidays) following submission by Advanced Automation of a final request for payment and lien waiver, together with interest at the rate of 1½% per calendar month (or part thereof) on amounts not paid when due, attorneys fees and costs of collection, all without relief from valuation and appraisement laws. Advanced Automation reserves the right to delay shipment of any Goods constituting a part of the Work and/or further performance of the Work if amounts are not paid when due until payment is received. Title to Goods included as a part of the Work shall not pass to Client until full payment is made to Advanced Automation as required hereunder, and Advanced Automation shall be entitled to immediate return of any such Goods upon demand, without waiving any other rights or remedies which it may otherwise have hereunder or under applicable law.
GOODS INCLUDED AS PART OF THE WORK: WARRANTY
Goods included as a part of the Work will be ordered from, and manufactured by, third parties. Advanced Automation shall use commercially reasonable efforts to timely order the goods for availability when needed as a part of the Work, but cannot be responsible for delays in manufacture or delivery. Warranties, if any, on goods manufactured by third parties shall be limited to those provided by each manufacturer, and will be subject to the terms and conditions thereof, all such manufacturer warranties to be passed along by Advanced Automation to Client. Any goods included as a part of the Work and shipped directly to Client will be shipped F.O.B. point of shipment, with the risk of loss to pass to Client upon delivery to the designated freight carrier. In no event shall Advanced Automation have any responsibility for damages during shipment or for the filing or assertion of any claims resulting therefrom, whether against the freight carrier involved, an insurer, or otherwise. Title to goods shipped directly to Client shall remain in Advanced Automation until payment in full is received by Advanced Automation as otherwise required herein. With respect to goods included as part of the Work which are delivered to Client by Advanced Automation, the risk of loss or damage to such goods shall not pass to Client until the goods have been delivered to Client’s property and/or the site of the Work, as the case may be. Upon delivery, Client shall have sole responsibility to offload and store the goods at its own cost and expense until installation and/or incorporation into the Work.
THE WORK: LABOR WARRANTY
In addition to any manufacturer’s warranties respecting the Goods, Advanced Automation hereby warrants that the Work (excluding the Goods) will be free from defects in workmanship for a period of one (1) year commencing upon the date the Work is completed and continuing for one (1) calendar year thereafter (“LABOR WARRANTY PERIOD”). Labor shall be provided without charge to Client by Advanced Automation for any defects discovered and about which it receives notice during the LABOR WARRANTY PERIOD. Damages resulting from misuse or improper operation or the lack of proper repair and maintenance of component parts of the Work shall not be covered by the foregoing Labor Warranty, any costs and expenses incurred in connection with required repairs or replacements necessitated as a consequence being the sole responsibility of Client.
CLIENT WARRANTY
Client hereby warrants to Advanced Automation that it shall take the necessary steps to insure that its employees are properly trained in the operation of machinery, equipment and processes included as a part of, or resulting from, performance of the Work, and that any persons who will be involved in operating, demonstrating, repairing, cleaning or otherwise engaged with such machinery, equipment and processes will comply with all safe operating practices and procedures recommended by the manufacturer. Client further warrants that it will not remove, cover up or alter any warnings or instructions posted or applied to any machinery or equipment included as a part of the Work, or make any alterations which adversely affect the safe operation thereof. Client further warrants that it will not remove any guards or other features incorporated into any such machinery and/or equipment which are designed or intended to enhance operator safety.
CLIENT INDEMNIFICATION
CLIENT WILL INDEMNIFY, DEFEND AND HOLD HARMLESS ADVANCED AUTOMATION AND ITS AGENTS, EMPLOYEES AND REPRESENTATIVES FROM AND AGAINST ANY AND ALL LOSS, COST, LIABILITY OR EXPENSE, INCLUDING ANY ATTORNEYS FEES AND RELATED COSTS, TO THE EXTENT ARISING OUT OF OR RELATED TO ANY BREACH BY CLIENT OF THE WARRANTY CONTAINED IN SECTION 6 OF THIS QC.
LIMITATION OF LIABILITY
EXCEPT FOR A BREACH OF THE INDEMNIFICATION OBLIGATION OF CLIENT UNDER SECTION 7 HEREOF, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OR IMPUTED PROFITS OR ROYALTIES ARISING OUT OF OR RELATED TO THIS QC, EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH LIABILITIES SOUND IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, WARRANTY OR OTHERWISE. EACH PARTY HEREBY EXPRESSLY WAIVES ANY CLAIM OR CONTENTION THAT THE FOREGOING LIMITATIONS DEPRIVE SUCH PARTY OF AN ADEQUATE REMEDY AT LAW OR IN EQUITY.
FORCE MAJEURE
Advanced Automation shall not be liable for any failure on its part to obtain the Goods or otherwise perform the Work or to fulfill the requirements of this QC, in whole or in part, if prevented from doing so by reason of any unavailability of the Goods, labor dispute, failure on the part of any Goods supplier, accident, fire, casualty, act of government, terrorism or any other cause beyond its control.
DISPUTES
Advanced Automation and Client shall attempt in good faith to amicably resolve any controversy, dispute or difference arising under this QC by nonbinding mediation, pursuant to applicable Rules For Alternative Dispute Resolution adopted by the New Hampshire Business Court, failing which either party may initiate litigation. A claim may be brought only in the U.S. District Court for the New Hampshire District or, if such court lacks jurisdiction, in the Business Court located in the Merrimack County Superior Court, Merrimack County, New Hampshire, for judicial determination by the court without the intervention of a jury. The parties each hereby submit to the exclusive jurisdiction of such courts and waive any defense or objection either may otherwise have to such jurisdiction. Each party hereby expressly waives its right to trial by jury.
INSURANCE
Client and Advanced Automation shall each obtain and maintain at all times during performance of the Work insurance against loss or damage by fire, and such other risks and hazards as are typically insurable, under available standard forms of “all risks” property insurance policies with extended coverage, each of them insuring their respective property at or about the site of the Work. Client and Advanced Automation shall each procure an appropriate clause or endorsement to property insurance required to be kept and maintained hereunder, wherein the insurer waives subrogation or consents to a waiver of any right of recovery against the other party to this QC. Client and Advanced Automation each agree not to make any claims against, or seek to recover from, the other for any loss or damage to its property or the property of others resulting from fire or other hazards to the extent covered by property insurance to be kept and maintained hereunder. Advanced Automation shall maintain in full force and effect at all times during performance of the Work, workers compensation insurance covering its employees involved in the performance of the Work, and having coverage limited required by applicable law, and a commercial general liability insurance policy, including products and completed operations, written on an occurrence basis, having a minimum combined single limit of $1,000,000.00, insuring against claims for property damage, bodily injury, including death, and personal injury. Proof of such insurance shall be provided to Client upon request prior to performance of the Work, and shall include a provision that such insurance cannot be cancelled without notice to Client giving at least thirty (30) days prior to the effective date of cancellation.
CANCELLATION
Orders accepted by Advanced Automation can only be cancelled by Client with the written consent of AA. Cancellation will be subject to: (i) payment to Advanced Automation for all Goods and other parts of the Work received by Client and/or performed by Advanced Automation prior to the effective date of cancellation; (ii) reimbursement to Advanced Automation for any costs incurred by Advanced Automation related to incompleted portions of the Work or necessitated by cancellation (including, without limitation, any cancellation fees imposed by third party vendors) together with 10% of the aggregate of such amounts to compensate Advanced Automation for its efforts in terminating the Work remaining to be completed; and (iii) payment by Client of any amounts with respect to the Work agreed upon between Advanced Automation and Client as a part of cancellation.
GENERAL AGREEMENT
This QC and the rights and duties hereunder shall be construed and interpreted under New Hampshire law, and shall inure to the benefit of and be binding upon both Advanced Automation and Client, their respective successors, assigns and legal representatives. There are no promises or agreements between the parties not contained herein or not otherwise incorporated by reference. Any amendments shall be in writing and shall be valid and effective only if signed by the party to be charged. This QC may be executed in counterparts, which when taken together shall constitute one and the same instrument.
SOFTWARE LICENSE AND END USER AGREEMENT
Under this Software License Agreement (the “Agreement”), Advanced Automation LLC (the “Vendor”) grants to the user (the “Licensee”) a non-exclusive and non-transferable license (the “License”) to use the MTS-C Control Logic, MTS-C HMI Configuration and Images, Device Configurations, including, but not limited to: Camera, Measurement Devices, and Motor Controls (the “Software”).
“Software” includes the executable computer programs, configurations, and any related printed, electronic, and online documentation and any other files that may accompany the product.
Title, copyright, intellectual property rights and distribution rights of the Software remain exclusively with the Vendor. Intellectual property rights include the look and feel of the Software. This Agreement constitutes a license for use only and is not in any way a transfer of ownership rights to the Software.
This Agreements grants a site license to the Licensee. The Software may be loaded onto a maximum of one automation cell per licensed copy.
The rights and obligations of this Agreement are personal rights granted to the Licensee only. The Licensee may not transfer or assign any of the rights or obligations granted under this Agreement to any other person or legal entity. The Licensee may not make available the Software for use by one or more third parties.
The Software may not be modified, reverse-engineered, or de-compiled in any manner through current or future available technologies.
Failure to comply with any of the terms under this License section will be considered a material breach of this Agreement.
LICENSE FEE
The original purchase price paid by the Licensee will constitute the entire license fee and is the full consideration for this Agreement.
LIMITATION OF LIABILITY
The Software is provided by the Vendor and accepted by the Licensee “as is”. Liability of the Vendor will be limited to a maximum of the original purchase price of the Software. The Vendor will not be liable for any general, special, incidental or consequential damages including, but not limited to, loss of production, loss of profits, loss of revenue, loss of data, or any other business or economic disadvantage suffered by the Licensee arising out of the use or failure to use the Software.
The Vendor makes no warranty expressed or implied regarding the fitness of the Software for a particular purpose or that the Software will be suitable or appropriate for the specific requirements of the Licensee.
The Vendor does not warrant that use of the Software will be uninterrupted or error-free. The Licensee accepts that software in general is prone to bugs and flaws within an acceptable level as determined in the industry.
WARRANTS AND REPRESENTATIONS
The Vendor warrants and represents that it is the copyright holder of the Software. The Vendor warrants and represents that granting the license to use this Software is not in violation of any other agreement, copyright or applicable statute.
Other third-party license agreements may apply:
Inductive Automation: https://inductiveautomation.com/ignition/license
Rockwell Automation: https://www.rockwellautomation.com/content/dam/rockwell-automation/sites/downloads/pdf/Rockwell-EULA-and-Addendum_English-Final2019.pdf
Others, project dependant.
ACCEPTANCE
All terms, conditions and obligations of this Agreement will be deemed to be accepted by the Licensee (“Acceptance”) on installation of the Software on the first computer.
TERM
The term of this Agreement will begin on Acceptance and is perpetual.
TERMINATION
This Agreement will be terminated, and the License forfeited where the Licensee has failed to comply with any of the terms of this Agreement or is in breach of this Agreement. On termination of this Agreement for any reason, the Licensee will promptly destroy the Software or return the Software to the Vendor.
GOVERNING LAW
The Parties to this Agreement submit to the jurisdiction of the courts of the State of New Hampshire for the enforcement of this Agreement or any arbitration award or decision arising from this Agreement. This Agreement will be enforced or construed according to the laws of the State of New Hampshire.
MISCELLANEOUS
This Agreement can only be modified in writing signed by both the Vendor and the Licensee.
This Agreement does not create or imply any relationship in agency or partnership between the Vendor and the Licensee.
This Agreement and the terms and conditions contained in this Agreement apply to and are binding upon the Vendor’s successors and assigns.