STANDARD SERVICE TERMS
AUSTECH STANDARD SERVICE TERMS
These Austech Standard Service Terms (these “Terms”) govern all services and deliverables provided to you (“Client”) by Austech LLC and its respective affiliates, subsidiaries and successors (collectively, “Supplier”). In the event of any dispute between Client and Supplier, Client’s recourse shall be limited to the specific Supplier company that performed the services or provided the deliverables. These Terms, including each Statement of Work or Order Acknowledgment entered into by the parties pursuant to these Terms, constitute the entire agreement between the parties in relation to its subject matter and supersede any and all prior agreements, understandings or arrangements between them, whether oral or in writing, in relation to such matters. Supplier rejects any additional, different or inconsistent terms or conditions delivered with or contained in Client’s purchase orders, order acknowledgment forms, correspondence or other standard business forms or documents, and no such terms or conditions shall alter the terms and conditions of these Terms or those of an SOW or an Order.
SCOPE OF SERVICES
Supplier shall only perform those services (the “Services”) and provide those related deliverables (the “Deliverables”) that are specifically described in a Statement of Work (each, an “SOW”) or an Order Acknowledgment (each, an “Order”) signed by authorized representatives of both parties and shall not be responsible for any services, deliverables or any other matters not documented in a fully-executed SOW or Order, as applicable. Supplier will provide equipment and labor qualified to provide the Services. Any descriptions, statements, comments or representations outside of the Deliverables made by an employee or agent of Supplier in the course of performing the Services will reflect the opinion or observations of such employee/agent based solely upon data available at the time of performing the Services and will not be construed as representations, warranties or modifications to these Terms. Client shall be responsible for all engineering, repair, modification and use decisions, including, without limitation, decisions regarding the scope and frequency of inspections, the inspection techniques to be used and the codes, procedures and acceptance criteria to be followed by Supplier. Supplier will be entitled to rely upon, and shall have no responsibility for, the accuracy and completeness of all records, information, data and specifications furnished or decisions made by Client (or Client’s consultants and other contractors hired by Client), government authorities, public utilities and manufacturers and suppliers of equipment, material or supplies. Supplier shall not have any responsibility for defects or limitations in any equipment, material or supplies specified or recommended by Supplier. Client shall provide Supplier with access to the site where the Services are to be performed and/or the Deliverables are to be provided and shall ensure that: (i) there are no encumbrances, structures or other physical barriers that would prevent Supplier from accessing the items that are the subject of the Services; (ii) such site is safe for Supplier and its employees to provide the Services and/or deliver the Deliverables and (iii) such site is compliant with all applicable laws, rules and regulations so that Supplier may perform the Services and deliver the Deliverables. The parties may only make modifications to the scope of the Services set forth in an SOW or an Order by entering into a written change order that is signed by authorized representatives of each party.
Statements of Conformity, Measurement Uncertainty and Acceptance Criteria:
The client shall be responsible including without limitation, to specify the acceptance criteria, standard, code and procedure required by the supplier. When a statement of conformity to a specification or standard is provided, measurement uncertainty is not taken into account unless otherwise requested, in writing by the client and specified on the report. All interpretations are documented and will not fall outside of the results of testing and examination.
TERM; TERMINATION
Unless otherwise provided in an SOW or an Order, the applicable SOW or Order will remain in effect from the date such SOW or Order is fully executed by authorized representatives of each party until either party terminates it in accordance with these Terms or by providing the other party with at least 60 days’ advance written notice. In the event of any such termination, Client shall make prompt payment for all Services and Deliverables properly performed and delivered prior to the effective date of termination.
In the event of a breach of any material term of these Terms, an SOW or an Order, the non-breaching party may immediately suspend performance of its obligations. Upon further written notice, if the breaching party fails to cure the breach within 10 business days of its receipt of written notice that sets forth the breach and proposed cure, the non-breaching party may immediately terminate any outstanding SOW or Order. If Supplier terminates an SOW or Order as a result of a Client’s material breach, then Supplier shall provide to Client a final invoice for the Services and/or Deliverables performed and delivered prior to the effective date of termination. Client shall pay such amount plus the Termination Payment. The “Termination Payment” will be equal to 10% of the difference between the price or estimate, as applicable, for such Services and/or Deliverables as set forth in the applicable SOW or Order (as amended in Supplier’s progress reports or change orders) and the sum of all payments made by Client, including the final invoice. Client’s payment obligation shall not be subject to set-off in any manner.
Either party may immediately terminate any outstanding SOW or Order upon written notice to the other party if: (i) the other party becomes insolvent and/or fails to provide written assurance to the requesting party of its ability to pay its debts as they become due; (ii) a receiver is appointed for the other party or its property; (iii) the other party makes an assignment for the benefit of its creditors; (iv) proceedings are commenced by or for the other party for relief under bankruptcy, insolvency or debtor’s relief law and not discharged within 60 days; or (v) the other party commences proceedings or takes action to liquidate or dissolve its business or attempts to do so.
PAYMENT
Unless otherwise provided in the applicable SOW or Order, Client shall pay for all Services on a time-and-materials basis pursuant to rates set forth in the applicable SOW or Order (the “Fees”). Each SOW and Order will be invoiced separately. Client shall make payments in full within 30 days of the date appearing on the face of the invoice. Thereafter, Supplier may impose a late charge of 1% of the unpaid balance of the invoice per month. Notwithstanding anything in these Terms to the contrary, Client shall compensate Supplier for costs and other overhead and expenses that are incurred by Supplier as a result of (i) delays, cancellations or postponements caused by Client; (ii) Client’s engineering, repair, modification and use decisions, including, without limitation, decisions regarding the scope and frequency of inspections, the inspection techniques to be used, the codes, procedures and acceptance criteria to be followed and additional quality assurance enhancements offered by Supplier (such as a dedicated site supervisor), in each case that are not specified or contemplated by the applicable SOW or Order; and (iii) any changes set forth in a Change Order that result in an equitable adjustment to the Fees.
ACCEPTANCE
Payment shall constitute acceptance of the Services and the Deliverables, such that Supplier is deemed to have met all requirements set forth in an SOW or an Order, as applicable. Client must identify deficiencies in the Services or the Deliverables and provide a written rejection within 15 business days of completion of the Services or receipt of the Deliverables, as applicable, for such rejection to be effective. Any rejection of the Services or the Deliverables after either payment or more than 15 business days following the date of completion of the Services or receipt of the Deliverables, as applicable, will be ineffective.
TITLE AND RISK OF LOSS
Title and risk of loss to any materials and equipment furnished by Client shall remain with Client. Title and risk of loss to materials and equipment furnished by Supplier during performance of the Services shall pass to Client upon installation if Supplier, or any person at the request or direction of Supplier, is responsible for installation under the applicable SOW or Order. Otherwise, title and risk of loss shall pass to Client upon delivery. After title passes to Client, title shall be subject to Supplier’s right to a purchase money security interest until Client has paid for such materials and equipment.
OWNERSHIP OF INFORMATION
Any work product of Supplier, regardless of when created, shall be owned by Supplier and may be used by Supplier for its own purposes. Such work product will include: (i) analytical output data and input parameters that are required to operate and maintain the facility that is the subject of the Services, and (ii) as-built configuration data, materials data and inspection parameters contained in the acceptance and pre-Service inspection procedures, calibration records and examination reports as required to support subsequent inspections and/or repairs (collectively, “Work Product”). Notwithstanding Supplier’s ownership of Work Product, Supplier hereby grants to Client a fully paid, non-exclusive, transferable, royalty-free, restricted license to use Work Product solely for purposes associated with Client’s facilities (e.g., operation, maintenance and inspection), provided that if Client requires Work Product to be disclosed to its consultants or other Suppliers, Client shall obtain the third party’s prior written agreement not to disclose or use Work Product at any time and in any manner that would compete with Supplier in the same or similar field(s) of use related to Work Product. Client shall notify Supplier of any such disclosure to a third party. Disclosure may not be made to a third party who is a competitor of Supplier without Supplier’s prior written consent.
CONFIDENTIALITY
Client and Supplier shall maintain in strict confidence all Confidential Information obtained or received by it and shall only disclose and/or use such Confidential Information as is reasonably required hereunder and/or to the extent required by applicable law. “Confidential Information” means all information provided by a party and its designated representatives to the other party, whether orally or by means of written material, including, without limitation, plans, specifications, financial or business data or projections or any other forms of business information. Notwithstanding the foregoing, a receiving party shall not have any confidentiality obligations for information that is shown to be (i) independently developed by the receiving party with no input, information or assistance from the disclosing party; (ii) lawfully obtained from sources other than the disclosing party; (iii) plainly and clearly not intended by the disclosing party to be treated as confidential information; or (iv) in the public domain. Each party shall be responsible for any breach of this section by any of its employees, agents, representatives, affiliates or subcontractors. In the event of breach of any of the provisions of this section by the receiving party, the disclosing party will be entitled to equitable relief, including in the form of injunctions and orders for specific performance, in addition to all other remedies available at law or equity.
If Client uses any reports, designs, drawings or other materials provided by Supplier for any other purpose or if Client modifies such reports, designs, drawings or documents, Client shall indemnify and hold Supplier harmless from any claims or losses resulting from such use or modification.
PERFORMANCE OF THE SERVICES
Supplier shall perform the Services and provide any associated Deliverables in accordance with the relevant and applicable standard of care and consistent with the industry standards, codes, protocols or other guidelines specified in the applicable SOW or Order. If a court of competent jurisdiction determines that Supplier has breached the applicable standard of care or has otherwise failed to perform the Services and/or provide the Deliverables in accordance with the industry standards, codes, protocols or other guidelines specified in the applicable SOW or Order, Client’s sole and exclusive remedy shall be corrective work by Supplier or, at Supplier’s option, a refund of the amount actually paid for such Services and/or Deliverables found to be deficient.
THE EXPRESS WARRANTIES SET FORTH IN THESE TERMS OR IN AN SOW OR ORDER ARE THE ONLY WARRANTIES MADE BY SUPPLIER AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. SUPPLIER HEREBY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND WARRANTY AGAINST THE INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY. ANY LEGAL CLAIM MADE IN A COURT OF COMPETENT JURISDICTION ARISING OUT OF OR MADE IN CONNECTION WITH THE SERVICES AND/OR THE DELIVERABLES PROVIDED UNDER AN SOW OR AN ORDER MUST BE FILED WITHIN ONE YEAR OF THE ACCRUAL OF THE CAUSE OF ACTION. EACH PARTY ACKNOWLEDGES AND UNDERSTANDS THAT THIS ONE-YEAR LIMITATION PERIOD MAY BE SHORTER THAN OTHERWISE PROVIDED UNDER THE LAWS OF SOME STATES. EACH PARTY FURTHER AGREES THAT A REDUCED LIMITATIONS PERIOD OF ONE YEAR IS NECESSARY TO ENSURE THE PROPER PRESERVATION OF EVIDENCE AND WITNESSES AND TO ACHIEVE A SPEEDY AND COST-EFFECTIVE RESOLUTION OF ANY POTENTIAL DISPUTE.
INDEMNITY
Each party agrees to defend, indemnify and hold harmless the other party and its affiliates, directors, managers, partners, officers, employees, agents, representatives, successors and assigns (collectively, “Indemnitees”) from and against claims of third parties for all liabilities, damages, losses, claims, costs and expenses including reasonable attorneys’ and expert fees (the “Claims”) to the extent that the Claims result from or arise out of a party’s negligence or willful misconduct, subject to the limitations of liability stated in these Terms.
LIMITATIONS OF LIABILITY
SUPPLIER’S TOTAL LIABILITY TO CLIENT AND CLIENT’S INDEMNITEES UNDER OR IN CONNECTION WITH AN SOW OR ORDER, THE BREACH THEREOF, THE SERVICES OR THE DELIVERABLES, REGARDLESS OF THE FORM OF ACTION IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE FEES PAID OR PAYABLE UNDER THE APPLICABLE SOW OR ORDER UNDER WHICH THE LIABILITY AROSE. NOTWITHSTANDING ANY PROVISION IN THESE TERMS OR IN AN SOW OR ORDER TO THE CONTRARY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ITS INDEMNITEES FOR, AND EACH PARTY RELEASES THE OTHER PARTY AND ITS INDEMNITEES FROM, ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSSES, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR LOSSES RELATING TO BUSINESS INTERRUPTIONS, LOST PROFITS, LOST BUSINESS OPPORTUNITIES, GOODWILL, REPUTATIONAL DAMAGES, LOST REVENUES, DOWNTIME, OVERHEAD EXPENSES, LOSS OF USE, BUSINESS INTERRUPTION, PRODUCTION LOSSES, DATA LOSSES OR OTHER ECONOMIC LOSSES, HOWSOEVER CAUSED, REGARDLESS OF WHETHER SUCH DAMAGES OR LOSSES ARISE OR RESULT, IN WHOLE OR IN PART, FROM NEGLIGENCE (WHETHER SUCH NEGLIGENCE BE SOLE, JOINT AND/OR CONCURRENT, ACTIVE OR PASSIVE), GROSS NEGLIGENCE, STRICT LIABILITY, CONTRACT BREACH, BREACH OF WARRANTY OR ANY OTHER THEORY OF LEGAL LIABILITY ATTRIBUTABLE TO THE OTHER PARTY OR ITS INDEMNITEES. SUPPLIER SHALL NOT BE RESPONSIBLE FOR, AND CLIENT SHALL DEFEND AND INDEMNIFY SUPPLIER AGAINST AND FOR, ANY DAMAGE, LOSS, CLAIM, INJURY OR EXPENSE INCURRED OR ASSERTED BY CLIENT OR ANY THIRD PARTY ARISING FROM OR ATTRIBUTABLE TO CLIENT’S MAINTENANCE, POSSESSION, USE OR MISUSE OF ITS OWN ASSETS, PROPERTY AND FACILITIES AND ANY PRODUCTS IT PURCHASES FROM SUPPLIER.
FORCE MAJEURE
Neither party shall be held responsible or liable for any loss, damage or delay caused by accidents, strikes, fires, floods or other circumstances or other causes beyond its reasonable control (each, a “Force Majeure Event”). If either party discovers that it is delayed or prevented in the performance of any of its obligations under the applicable SOW or Order by a Force Majeure Event, that party shall give written notice to the other party describing the Force Majeure Event within two business days of its occurrence. The affected party shall not be liable for such delay or non-performance attributable to the Force Majeure Event, and the time for performance of the affected obligation will be extended by such period as is reasonable to enable that party, using all reasonable efforts, to perform that obligation. A party’s performance under this section will be suspended only for so long as the Force Majeure Event exists. Notwithstanding the foregoing, a Force Majeure Event will not excuse Client’s duty to make timely payment due under these Terms or the applicable SOW or Order.
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INDEPENDENT CONTRACTOR
The parties acknowledge that in providing the Services under the applicable SOW or Order, Supplier is acting solely as an independent contractor and not as an agent or employee of Client. Neither party has the authority to bind the other to any third person, to incur any debts or liabilities in the name of or on behalf of the other party or otherwise to act in any way as the representative of the other unless otherwise expressly agreed to in writing signed by both parties. Nothing contained in these Terms or in the applicable SOW or Order is intended to give rise to, or gives rise to, a partnership, joint venture, agency, fiduciary, employment or other relationship between the parties or imposes upon the parties any of the duties or responsibilities of partners, joint venturers or employer-employee beyond the relationship of independent parties to a commercial contract.
GOVERNING LAW; VENUE
The parties agree that these Terms and any SOW or Order will be governed by and construed in accordance with the laws of the State of [Insert Jurisdiction] without regard to its conflicts of laws principles. For any dispute arising out of or in connection with these Terms or an SOW or Order, the parties consent to the jurisdiction of the courts of competent jurisdiction situated in the State of [Insert Jurisdiction]. THE PARTIES HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY IN CONNECTION WITH ANY CLAIM OR DISPUTE ARISING OUT OF OR RELATING TO THESE TERMS OR AN SOW OR ORDER. EACH PARTY KNOWINGLY AND INTENTIONALLY WAIVES ITS RIGHT TO TRIAL BY JURY.
MISCELLANEOUS
In the event of a conflict between the terms and conditions of these Terms, on one hand, and the terms of any SOW or Order, on the other hand, the terms and conditions of these Terms shall control unless the conflicting term in an SOW or an Order, as applicable, specifically references the inconsistent provision(s) of these Terms to be superseded, in which case the conflicting term set forth in such SOW or Order shall control to resolve such conflict only with respect to, and for the limited purpose set forth in, such SOW or Order. Any modification of these Terms will have no effect unless expressly agreed to in a writing signed by an authorized representative of Supplier. The waiver or failure of either party to exercise any right provided for herein will not be deemed a waiver of any further right hereunder. No consent or waiver by a party with respect to any provision of these Terms will be effective unless made by a duly authorized representative of such party. If any provision of these Terms is held invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability will not invalidate or render unenforceable the entire Terms; rather, the entire Terms will be construed as if not containing the invalid or unenforceable provision, and the rights and obligations of each party will be construed and enforced accordingly. The express remedies set forth in these Terms and in an SOW or Order, as applicable, are the sole and exclusive remedies of the parties and in lieu of any other remedies at law or in equity. Notwithstanding anything in these Terms to the contrary, Supplier and Client agree that the terms and conditions of these Terms that by their context are intended to survive or that are expressly stated to survive will survive termination of any related agreement, including an SOW or an Order.
LIMITED WARRANTY APPLICABLE TO ALL INDUSTRIAL TRADES WORK
All industrial trades work performed by Austech (“Trades Work”), including insulation, welding, pipefitting, electrical, painting, coating, winterization, construction, fabrication, repair, demolition and installation services, will include the following Limited Warranty (this “Limited Warranty”). Subject to the conditions and exclusions set forth below, all Trades Work will be free from material defects in Austech’s workmanship for the lesser of 12 months from the date of sale or five business days after the deficiency was or could have been detected by Client (the “Warranty Period”).
Client’s sole and exclusive remedy and Austech’s sole and exclusive liability under this Limited Warranty will be for Austech to repair or replace the deficiency or, at Austech’s option, to refund the amount paid for the deficient Trades Work.
This Limited Warranty does not apply to materials, components, supplies, parts or goods manufactured by a party other than Austech (the “OEM”), such as construction materials and coating products. All such materials will be governed solely by the OEM’s warranty, and Client’s sole recourse with respect to such materials will be under the OEM’s warranty to the extent the warranty is transferrable to Client.
This Limited Warranty does not apply to any damage, failure or other issues caused by Client’s failure to comply with Austech’s and/or the OEM’s instructions, requirements or warranty conditions.
APPLICABILITY OF THESE TERMS TO THE MAXIMUM EXTENT PERMITTED BY LAW, CLIENT WAIVES AND RELEASES ANY AND ALL RIGHTS, CLAIMS, DEMANDS OR CAUSES OF ACTION THAT MAY OTHERWISE BE AVAILABLE AT LAW OR IN EQUITY OR GRANTED BY STATUTE TO AVOID OR DISREGARD THE ENTITY FORM OF SUPPLIER OR OTHERWISE IMPOSE LIABILITY ON ANY AFFILIATE OF SUPPLIER, WHETHER GRANTED BY STATUTE OR BASED ON THEORIES OF EQUITY, AGENCY, CONTROL, INSTRUMENTALITY, ALTER EGO, DOMINATION, SHAM, SINGLE BUSINESS ENTERPRISE, PIERCING THE CORPORATE VEIL, UNFAIRNESS OR UNDERCAPITALIZATION.
WE VERY MUCH APPRECIATE YOUR BUSINESS. SHOULD YOU HAVE ANY QUESTIONS, PLEASE CONTACT THE PERSON FROM WHOM YOU WISH TO ORDER PRODUCTS AND/OR SERVICES OR SEND AN EMAIL TO INFO@AUSTECHUS.COM.