Last Revised January 25, 2023
Definition of Parties
ESC Spectrum Corporation shall hereafter be referred to as the “Company”.
A Company price list, quotation, or proposal and all documents attached and/or referenced therein (hereafter referred to as the “Proposal”) constitutes an offer (hereafter referred to as the “Offer”) by the Company to provide products and/or services to a Customer (hereafter referred to as the “Customer”). The Offer presented in a Company quotation or proposal is valid for a period of 90 days from the date of issuance to the Customer unless explicitly withdrawn by the Company. The Offer presented in a Company price list is subject to change without notice and must be verified by the Customer prior to issuing a Purchase Order (hereafter referred to as the “Purchase Order”) to the Company.
The Customer may place an order with the Company for products and/or services by issuing a purchase order to the Company, which indicates the Customer’s acceptance of the Offer by reference to the Proposal. The Purchase Order should be issued to:
It is expressly agreed that the Proposal and the Purchase Order shall constitute the entire agreement (hereafter referred to as the “Sales Agreement”) between the Company and the Customer for the provision of the specified products and/or services. Additionally, it is expressly agreed that this Sales Agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such products and/or services. The Sales Agreement can only be modified in writing and must be jointly signed by duly appointed representatives of the Company and the Customer.
The information contained in the Proposal is confidential and intended only for the use of the Customer to which it is addressed. Any dissemination, distribution, or duplication of the Proposal outside of the Customer’s organization without the express permission of the Company is strictly prohibited.
For work that the Company undertakes on premises owned by, rented by, or otherwise under the jurisdiction of the Customer, the Customer shall provide access to a safe working platform, sampling ports sufficient to conduct relative accuracy testing, and sufficient utilities at the sampling location, i.e., 115 VAC ± 10%, 30 amps, when applicable.
Unless specifically stated otherwise within the Proposal, shipping terms shall be as follows:
- For shipping to destinations within the United States of America (USA), shipping terms are FOB, «OPPORTUNITY_COMPANY_CITY_STATE», USA. All prices are exclusive of shipping and insurance charges. Applicable charges will be added to all invoices for all shipping and insurance charges paid for by the Company.
- For shipping to destinations outside of the USA, shipping terms are EX WORKS, «OPPORTUNITY_COMPANY_CITY_STATE», USA. The Customer is responsible for making all shipping arrangements from the point of origin to the destination; for managing all exportation, importation, and customs-related issues; and for providing any and all ISO and/or INCOTERMS inspections and documentation. Additionally, the Customer will directly pay all shipping charges, customs clearing fees, and applicable tariffs, taxes, or duties required for exportation from the USA, importation into the destination country, and/or use in the destination country.
Unless specifically stated otherwise within the Proposal, taxes will be handled as follows:
- For all sales within the USA, quoted prices will be exclusive of any sales tax that may apply to the purchase. the Company will apply sales tax to each invoice as a separately stated item for taxable items shipped or when taxable services are performed unless a valid sales & use exemption certificate or direct pay permit from the customer is supplied with the Purchase Order.
- For sales outside of the USA, the Customer is responsible for directly paying all applicable taxes, tariffs, and/or duties.
Product Delivery and Service Schedule
Unless specifically stated otherwise within the Proposal, delivery of goods and/or services shall be as follows:
- Standard delivery for all Company provided systems (integrated and/or configured software and hardware products) is 90 days ARO or 75 days after the receipt of all customer-provided materials and information required to properly configure the products, whichever is later; however, for projects involving over five (5) plants, delivery schedule will be negotiated ARO. Standard delivery for discrete products is 60 days ARO. Expedited deliveries required before this window are subject to an expediting fee ($250.00 per discrete product).
- Onsite or remote labor included in the proposal must be scheduled at least 30 days in advance and, if canceled or postponed within 30 days of the scheduled date, subject to a rescheduling fee ($1,000.00) and any airline costs incurred by the Company and can be rescheduled at a mutually-agreeable date. Unforeseen delays during onsite or remote labor may extend the length of quoted labor and result in additional charges.
- In the event that the project is suspended by the Customer, the Customer will provide the Company with a sixty (60) day grace period upon reinstatement of the project in order to allow the original project personnel to finish any work to which they had been reassigned.
- The Company shall not be responsible for delays or equipment failures resulting from events beyond the control of the Company. Such events shall include, but not be limited to, strikes, lock-outs, riots, acts of war, epidemics, governmental regulations superimposed after the fact, corrosion, neglect, fire, lightning strikes, earthquakes, floods, acts of God, or other such disasters.
Billing and Payment Terms
Unless specifically stated otherwise within the Proposal, billing and payment terms shall be as follows:
- For Customers who are based in the USA:
- All services quoted as part of an annual or multiyear services agreement will be billed on an annual basis, with the first invoice issued upon the start of the term of service.
- All systems and/or services quoted on a fixed price basis will be billed 50% upon receipt of purchase order and 50% upon substantial completion.
- All services quoted on a time and materials basis will be billed monthly for the work completed during that month.
- All products quoted on a fixed price basis will be billed upon shipment of the products.
- The Company’s standard payment terms are Net 30 days, subject to approved credit. Any amounts not paid within 30 days of the invoice date may be subject to a late fee of 1.5% per month. Payment thereafter is to be applied first to accrued late fee(s) and then to the principal amount remaining unpaid.
- In the event that the project is suspended or canceled by the Customer, the Company will perform the necessary work to bring the project to a reasonable state for suspension or cancellation and then generate an invoice for the unbilled balance of all work performed on the project. The billing amount for partially completed tasks or milestones will be computed by the Company on a percent complete or T&M basis. Additional restocking fees may apply for any products and/or parts that are on order or in the process of being manufactured and/or shipped. The Customer will be responsible for immediate payment of the invoice upon receipt.
The Company’s Proposal to provide products and/or services was developed in good faith based upon information provided by the Customer prior to the time that the Offer was made and was based upon assumptions made by the Company to constrain the scope, schedule, and terms and conditions of the Offer in order to provide the Customer with a reasonable price. In the event that the Company is required to provide products and/or services or is required to absorb additional costs and/or risks outside the constraints of the Proposal due to circumstances outside of the reasonable control of the Company, then the Company will notify the Customer of these circumstances and negotiate additional charges with the Customer in good faith. Likewise, the Customer agrees to negotiate with the Company in good faith and to pay for these additional charges should they arise. Examples of circumstances that are considered outside of the reasonable control of the Company include but are not limited to the following:
- The provision of incomplete, inadequate, or inaccurate information to the Company by the Customer prior to the submittal of the Proposal.
- Changes in regulations and/or permits, or changes in the understanding and/or interpretation of these regulations and/or permits, following the submittal of the Proposal.
- Delays or inadequacies in the provision of information to the Company, for which the Customer is responsible for providing in order for the Company to complete the proposed scope of work.
- Delays or inadequacies in the review of deliverables provided by the Company, for which the Customer is responsible for reviewing in order for the Company to complete the proposed scope of work.
- Delays or inadequacies in the provision of third-party software, hardware, and/or services that the Customer is responsible for providing in order for the Company to complete the proposed scope of work.
- Delays in the provision of the Company personnel with timely access to the Customer site, to Customer personnel, or to Customer equipment.
- Damage to the Company’s products and/or equipment while at the Customer’s site, while in the custody of the Customer, or while otherwise under the care of the Customer.
Ownership of Intellectual Property
The Customer acknowledges that the Company retains ownership and all rights in and to all Intellectual Property (as defined below) that is owned or licensed by the Company and which is used in or associated with (i) any of the Company’s products or Services (including computer software) provided by the Company to Customer, or (ii) engineering work processes used by the Company in connection with the foregoing. As used herein, “Intellectual Property” means all reports, data, information, documents, specifications, flow charts, discoveries, inventions, processes, firmware, computer software, source and object code, software documentation, and know-how, as well as any resulting intellectual property, including but not limited to, invention disclosures, provisional patent applications, regular patent applications, patents, trade secrets, proprietary information, copyrights, trademarks, service marks, domain names, trade dress, and moral rights. Furthermore, the Customer understands and agrees that the use of the Company’s software products by the Customer, its affiliates, or its subcontractors is governed by the terms and conditions of the Company’s End User License Agreement (EULA), which may be found on the Company’s website (https://escspectrum.com/wp-content/uploads/2022/11/ESC-Software-EULA-2022-11-30.pdf), and related maintenance and support agreements.
Software Product Warranty
UNLESS DIFFERENT SOFTWARE WARRANTY TERMS ARE SPECIFICALLY STATED ELSEWHERE IN THE PROPOSAL, THE FOLLOWING TERMS SHALL APPLY:
The Company warrants that software products licensed by the Company to the Customer under the Sales Agreement (hereafter referred to as the “Software”) will operate in all material respects as described in all applicable product documentation (hereafter referred to as the “Documentation”) for a period of ninety (90) days from the date of shipment (hereafter referred to as the “Warranty Period”) when the Software is used in accordance with the Documentation. If during the Warranty Period, the Customer believes that the Software is not substantially performing in accordance with the Documentation, the Customer will immediately notify the Company in writing, describe with specificity any such non-performance, and will provide a listing of output and other such logging data as may be required by the Company to reproduce the operating conditions as existed when the non-performance occurred.
THE CUSTOMER’S EXCLUSIVE REMEDY AND THE COMPANY’S SOLE LIABILITY UNDER THIS WARRANTY SHALL BE FOR THE COMPANY TO: (A) CORRECT ANY SOFTWARE ERRORS THAT CAUSE BREACH OF THE WARRANTY; OR (B) CANCEL THE LICENSE AND REFUND THE LICENSE FEES PAID BY THE CUSTOMER UPON RETURN OF THE SOFTWARE TO THE COMPANY SHOULD THE COMPANY BE UNABLE TO SUBSTANTIALLY CORRECT SUCH BREACH IN A COMMERCIALLY REASONABLE MANNER. CHOICE OF REMEDY SHALL BE AT THE COMPANY’S SOLE DISCRETION. THIS WARRANTY DOES NOT APPLY TO ERRORS OR MALFUNCTIONS CAUSED BY: (A) MALFUNCTION OF CUSTOMER EQUIPMENT; (B) SOFTWARE NOT LICENSED BY THE COMPANY; (C) ABNORMAL USE; OR D) ANY OTHER CAUSE NOT DIRECTLY ATTRIBUTABLE TO THE COMPANY. THE WARRANTIES SET FORTH HEREIN ARE VOID IF THE CUSTOMER OR ANY THIRD PARTY MODIFIES OR CHANGES THE SOFTWARE IN ANY WAY BEYOND THE SCOPE OF THE CUSTOMIZATION OPTIONS CONTAINED IN THE SOFTWARE. IN ORDER TO RECEIVE AND MAINTAIN THIS WARRANTY, THE CUSTOMER MUST: (A) USE THE SOFTWARE IN ACCORDANCE WITH THE DOCUMENTATION; (B) USE THE SOFTWARE ON HARDWARE AND WITH THE OPERATING SYSTEM AND OTHER THIRD-PARTY SOFTWARE FOR WHICH IT WAS DESIGNED; AND (C) USE ONLY QUALIFIED PERSONNEL TO OPERATE THE SOFTWARE. THE COMPANY SHALL NOT BE REQUIRED TO MAINTAIN COMPATIBILITY BETWEEN THE SOFTWARE AND ANY OTHER THIRD-PARTY SOFTWARE OTHER THAN THE SPECIFIC VERSIONS OF THIRD-PARTY SOFTWARE SPECIFIED IN THE DOCUMENTATION. THE COMPANY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET THE CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE COMPANY WILL CORRECT ALL SOFTWARE ERRORS.
Hardware Product Warranty
UNLESS DIFFERENT HARDWARE WARRANTY TERMS ARE SPECIFICALLY STATED ELSEWHERE IN THE PROPOSAL, THE FOLLOWING TERMS SHALL APPLY:
The Company warrants that hardware products developed by the Company and provided by the Company to the Customer under the Sales Agreement (hereafter referred to as the “Hardware”) when operated and maintained in accordance with all applicable product documentation (hereafter referred to as the “Documentation”), shall be free from defects in materials and workmanship for a period of ninety (90) days from the date of shipment (hereafter referred to as the “Warranty Period”). If, during the Warranty Period, the Customer believes that the Hardware is not substantially performing in accordance with the Documentation, the Customer will immediately notify the Company by contacting the Company’s Customer Service. The Company’s Customer service representative will assess the defect described by the Customer and recommend further troubleshooting to isolate and determine the exact cause of the non-conformance. If the defect can be corrected by telephone consultation with the Company’s customer service representative and no parts are required to correct the reported defect, then no further action will be taken by the Company. If the source of the defect can be determined by telephone consultation with the Company’s Customer service representative and parts are required to correct the reported defect, the Company will ship the necessary parts to the Customer to correct this defect. The Company will assign a return authorization number for the defective parts to be returned to the Company, shipping prepaid by the Customer. If the Customer elects to ship the defective Hardware to the Company to correct the reported defect, the Company will assign a return authorization number for the defective Hardware to be returned to the Company, shipping prepaid by the Customer. Upon receipt of the Hardware, the Company will inform the Customer of the Company’s decision to repair or replace the Hardware and the expected return shipment date. The Company will prepay the return shipping charges. If, during the evaluation of the warranty defect, it is determined that the cause of the Hardware failure is due to ordinary wear and tear, misuse, abuse, vandalism, acts of God, or improper handling, storage, operation, or maintenance of the product, then the Company will request a purchase order to be issued or amended to cover the parts and labor for the repair of the Hardware prior to making the repairs and returning the Hardware to the Customer.
THE CUSTOMER’S EXCLUSIVE REMEDY AND THE COMPANY’S SOLE LIABILITY UNDER THIS WARRANTY SHALL BE FOR THE COMPANY TO: (A) REPAIR OR REPLACE DEFECTIVE HARDWARE THAT CAUSES A BREACH OF THE WARRANTY; OR (B) REFUND THE FEES PAID BY THE CUSTOMER TO PURCHASE THE HARDWARE UPON RETURN OF THE HARDWARE TO THE COMPANY SHOULD THE COMPANY BE UNABLE TO SUBSTANTIALLY CORRECT SUCH BREACH IN A COMMERCIALLY REASONABLE MANNER. CHOICE OF REMEDY SHALL BE AT THE COMPANY’S SOLE DISCRETION. THIS WARRANTY DOES NOT APPLY TO DAMAGE CAUSED BY ORDINARY WEAR AND TEAR OR TO DAMAGE CAUSED BY MISUSE, ABUSE, VANDALISM, ACTS OF GOD, OR IMPROPER HANDLING, STORAGE, OPERATION, OR MAINTENANCE OF THE HARDWARE. ALSO, THIS WARRANTY DOES NOT APPLY TO CONSUMABLE OR PERISHABLE MATERIALS CONTAINED WITHIN THE HARDWARE OR ANY THIRD-PARTY HARDWARE PRODUCTS PROVIDED UNDER THE SALES AGREEMENT. THE WARRANTIES SET FORTH HEREIN ARE VOID IF MODIFICATIONS OR REPAIRS ARE MADE TO THE HARDWARE BY ANY PARTY OTHER THAN A COMPANY-AUTHORIZED SERVICE REPRESENTATIVE.
The Company Services Warranty
UNLESS DIFFERENT SERVICES WARRANTY TERMS ARE SPECIFICALLY STATED ELSEWHERE IN THE PROPOSAL, THE FOLLOWING TERMS SHALL APPLY:
The Company warrants that the services that it provides to the Customer (hereafter referred to as the “Services”) under the Sales Agreement will be performed in a professional manner, consistent with industry standards. If the Customer notifies the Company of a material breach of such warranty within a period of thirty (30) days of the completion of the Services (hereafter referred to as the “Warranty Period”), the Company agrees to correct the deficient Services within a mutually agreeable time period. The Company shall not be responsible or liable for any failures associated with defining the scope of the Services to be provided by the Company or for determining whether the Services will achieve the business objectives of the Customer. Except as otherwise expressly set forth herein, the Company makes no guarantees or representations as to the results of the Services performed.
THE CUSTOMER’S EXCLUSIVE REMEDY AND THE COMPANY’S SOLE LIABILITY UNDER THIS WARRANTY SHALL BE FOR THE COMPANY TO: (A) CORRECT DEFICIENCIES IN THE SERVICES THAT CAUSE A BREACH OF THE WARRANTY; OR (B) REFUND THE FEES PAID BY THE CUSTOMER TO PURCHASE THE SERVICES SHOULD THE COMPANY BE UNABLE TO SUBSTANTIALLY CORRECT SUCH BREACH IN A COMMERCIALLY REASONABLE MANNER. CHOICE OF REMEDY SHALL BE AT THE COMPANY’S SOLE DISCRETION.
Software, Hardware, and Services Warranties Disclaimer
TO THE EXTENT PERMITTED BY LAW, ALL WARRANTIES STATED IN THE PROPOSAL OR SET FORTH UNDER THESE TERMS AND CONDITIONS ARE EXCLUSIVE, AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
This is a binding agreement for which the Customer derives significant benefits. In the event of early termination of the Sales Contract by the Customer, termination fees will be assessed. The Customer will remain obligated to pay the Company for all outstanding invoices and any future invoices for fees and /or costs not yet invoiced. These fees and costs shall include those outstanding at the time of termination, as well as those reasonably stemming from termination and post-termination activities, including, but not limited to, demobilization, schedule modification, personnel reassignment, equipment restocking and/or disposal, and replacement of consumables. The fees shall be determined using the Company’s prevailing fee schedule and expense reimbursement policy.
SHOULD THE CUSTOMER ELECT TO TERMINATE THE SALES AGREEMENT FOR ANY REASON OTHER THAN THOSE DELINEATED IN THE PRECEDING PARAGRAPH, THE CUSTOMER SHALL BE REQUIRED TO PAY THE FULL BALANCE OF THE AGREED CONTRACT AMOUNT.
In the event of a conflict between the main body of the Proposal and any document which is attached and/or referenced by the Proposal, the text of the main body of the Proposal shall govern. In the event of a conflict between any documents which are attached and/or referenced by the Proposal, the text of the document with the most recent date shall govern. In the event of a conflict between the Proposal and the Purchase Order, the text of the Proposal shall govern.
Neither the Company nor the Customer may assign its rights under the Sales Agreement to anyone else without the other party’s advance, written permission which shall not be unreasonably withheld; provided, however, that any merger, consolidation, or direct or indirect change in control of either party shall be deemed permitted assignment hereunder and such party’s rights hereunder may be assigned in whole to any surviving new organization acquiring all or substantially all of the business and assets of such party. If the Company elects to meet the Company’s obligations under this Sales Agreement by contracting with a third party, the Company is still responsible to the Customer in accordance with the terms of the Sales Agreement.
The Company agrees to protect, indemnify, defend, and hold the Customer and their respective officers, affiliates, and employees free and harmless from and against liability to the extent caused by the Company’s negligence. The Company shall in no case be required to pay an amount disproportionate to the Company’s negligence, nor shall the Company be required to pay any amount or sum levied against the Customer to recognize more than actual and/or reasonable damages. Likewise, the Customer agrees to protect, indemnify, defend, and hold the Company and their respective officers, affiliates, and employees free and harmless from and against liability to the extent caused by the Customer’s negligence. The Customer shall in no case be required to pay an amount disproportionate to the Customer’s negligence, nor shall the Customer be required to pay any amount or sum levied against the Company to recognize more than actual and/or reasonable damages.
Limitation of Liability
The Customer acknowledges and agrees that in no event shall the Company, its parent, or any of their respective officers, directors, employees, shareholders, agents or representatives be liable to the Customer, any of its affiliates, or any other party for any indirect, incidental, special, exemplary or consequential damages or loss of goodwill, lost profits, lost savings, or regulatory penalties in any way arising from or relating to the Sales Agreement or resulting from the use of or inability to use, or the performance or non-performance of, any products and/or services provided by the Company to the Customer under the Sales Agreement, including the failure of essential purpose, even if the Company has been notified of the possibility or likelihood of such damages occurring. In no event will the Company’s liability for any damages to the Customer, any of its affiliates, or to any third party exceed the costs of correcting defects in the products and/or services or the amount of the fees paid by the Customer to the Company hereunder, whichever is greater. The Customer is a sophisticated purchaser and acknowledges and agrees that the Company is unable to test its products and/or services under all possible circumstances, that the Company cannot control the manner in which the Customer uses its products and/or services, and that the allocation of risks in the Sales Agreement are reflected in the fees and other charges provided under the Sales Agreement and are appropriate under the circumstances.
The Company shall assume liability and responsibility for the defense of any suit cause of action, claim, or proceeding which may be brought against the Customer, its parent or affiliated companies, directors, employees, or its agents, customers, or other vendors for any alleged patent infringement or for any alleged unfair competition resulting from similarity in design, trademark or appearance of goods or services furnished hereunder, and Seller shall indemnify Purchaser, its agents, and customers against any and all expenses, losses, royalties, profits and damages including court costs and attorney’s fees resulting from any such suit cause of action, claim or proceeding, including settlement. The Customer, at its option, may be represented by and actively participate through its own counsel in any suit or proceeding, and the costs and expenses of representation shall be paid by the Company.
The Company shall be released without any liability from the performance of its obligations under the Sales Agreement to the extent an event or condition not within the Company’s control prevents that performance or makes that performance so difficult or costly that it is commercially unreasonable.
If any term or provision of the Sales Agreement is found to be unlawful or unenforceable, it shall be deemed stricken. All remaining terms and provisions of the Sales Agreement shall remain effective to the maximum extent enforceable by law. Additionally, the Company and the Customer shall endeavor to quickly replace the unlawful or unenforceable term or provision with a valid substitute that expresses the intent of, or at least addresses, the issues covered by, the original term or provision.
Any time incurred by the Company in diagnosing or fixing problems that are not covered by the agreement is billable to the Customer at the Company’s then-existing rates that are initially set forth in this agreement.
Factory Acceptance Test
At the customer’s request, the Company will conduct a Factory Acceptance Test (FAT) to demonstrate the proper functionality of the system prior to installation at the plant. The price for the FAT is based on the location and duration of the FAT. The Company will bill for the FAT in accordance with the Company’s standard rates.
Choice of Law
The Sales Agreement shall be construed and enforced in accordance with the laws of the State of Texas, United States of America.
Compliance with Law
The Company is committed to complying with applicable laws, statutes, regulations, rules, ordinances, codes, and standards governing employment discrimination, wages, hours, desegregation, employment of minors, as well as health and safety.
This contract is subject to the provisions of (i) Executive Order 11246, (41 CFR 60-1.4); (ii) section 503 of the Rehabilitation Act of 1973, (41 CFR 60-741.5(a); and (iii) section 4212 of the Vietnam Era Veterans Readjustment Act of 1974, (41 CFR 60-300.5(a).
The Company and its subcontractors shall abide by the requirements of 41 CFR 60-741.5(a) and 41 CFR 60-300.5(a). These regulations prohibit discrimination against qualified individuals on the basis of disability and qualified protected veterans and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities and qualified protected veterans.