Terms and Conditions
Up-Rev Terms and Conditions
The following Terms and Conditions (“Agreement”) shall apply and control over any other agreements, understandings, and courses of dealing, and contracts between Up-Rev, Inc. (“Up-Rev”) and the Customer.
1. TERMS. All sales of engineering services, product development services, and consulting services by Up-Rev (collectively, “Engineering Services”) are subject to these Terms and Conditions. All Proposals, Quotations, and Task Orders issued by Up-Rev are an offer to sell Engineering Services pursuant to these Terms and Conditions. No waiver or modification of these Terms and Conditions shall be binding on Up-Rev unless authorized in writing by Up-Rev. Up-Rev’s acceptance of any order is contingent upon the receipt of a valid purchase order or signed proposal from the Customer, and any language in any purchase order or other document from Customer shall not, unless signed by Up-Rev, cause these Terms and Conditions to be considered amended nor shall such language control over terms herein.
2. SCOPE OF WORK. The scope of work for the Engineering Services to be provided to Customer is specifically set forth in the proposal, quote, or acknowledgment submitted to Customer by Up-Rev. If Customer requests a change in the scope of the Engineering Services to be provided, Up-Rev reserves the right to revise delivery schedules and make an equitable adjustment to the price; so long as such adjusted price does not exceed 150% of the initial price, Customer agrees to pay such adjusted price upon notice thereof. Up-Rev will not be obligated to provide any services which are (a) outside of the scope defined in the applicable documentation; (b) outside its area of expertise; or (c) in violation of any applicable laws, codes or regulations.
3. PRICES AND TAXES. Prices for the Engineering Services are subject to escalation in the event of an increase in costs associated with the project. Unless otherwise stated or agreed, Up-Rev’s prices do not include sales, use, or similar taxes. Customer agrees to pay such escalated prices so long as they do not exceed 150% of the initial price and further agrees to pay any and all taxes due in connection with the Engineering Services.
4. MATERIAL COSTS.
4.1. Customer Procurement Option. If Customer furnishes Up-Rev with a valid credit card or other means to procure materials which will be directly billed to Customer, Customer agrees to pay a material handling fee equal to 5% of the gross material invoice total, including delivery costs and taxes. Up-Rev will include such material handling fees on its invoices upon each delivery to Up-Rev of material so purchased.
4.2. Up-Rev Procurement Option. Up-Rev provides the services to procure and manage the material purchasing by utilizing its existing relationships and payment terms with vendors/manufacturers by issuing purchase orders. Such factors may result in lower material costs to Customer. Customer agrees to pay a 15% material handling fee (based on the gross material invoice total, including delivery costs and taxes) on all material costs when Up-Rev so procures materials.
4.3. Default Option. If Customer fails to timely procure any materials requested by Up-Rev for a Task Order or fails to indicate on a specific Task Order that it elects to use the Customer Procurement Option in Section 4.1, Up-Rev, in its sole and absolute discretion, may procure such materials pursuant to Section 4.2.
4.4. Restocking Fee. If Up-Rev is required to return any materials purchased on behalf of the Customer for any reason other than Up-Rev’s sole error, the Customer shall pay any shipping and restocking charges incurred from the vendor or otherwise to ship such materials.
5. LIMITED WARRANTY. Up-Rev will provide the Engineering Services in accordance with generally accepted professional engineering practices using reasonable care and skill consistent with that ordinarily exercised by members of the profession under similar conditions, and agrees that its work will comply with applicable laws and conform to applicable industry standards. However, due to the nature of the Engineering Services being provided, Up-Rev cannot fully guarantee the success of Customer’s project. As such, except as provided in this Section, Up-Rev makes no warranties or guarantees, whether express, implied, or statutory, regarding or relating to the Engineering Services provided and Customer waives each of the foregoing warranties and guarantees. Up-Rev specifically disclaims and Customer waives all implied warranties of merchantability and fitness for a particular purpose with respect to the Engineering Services. EXCEPT AS EXPRESSLY PROVIDED HEREIN, UP-REV MAKES NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, regarding Up-Rev’s work product, deliverables, and Intellectual Property created or developed by Up-Rev during the course of work on the Task Orders, and Customer expressly waives the foregoing warranties.
6. PAYMENTS. Payment shall be made in U.S. dollars. Payments received shall be applied, regardless of invoice number or restrictive endorsement, first to any outstanding late fees, then to any outstanding material handling fees, and then to any outstanding principal balance or other fees at Up-Rev’s sole discretion.
7. PAYMENT TERMS. If not otherwise provided in a Task Order, Up-Rev’s standard payment terms are NET 15 days.
8. LATE FEES. Payments due but not received on or before the due date shall be charged late fees at the rate of 1.5% per month until paid in full, which late fees shall each immediately become part of Customer’s principal balance. If Up-Rev employs a collection agency or law firm to collect any amounts due under this payments from Customer, then Customer is responsible for paying all costs incurred for collection agency services, including without limitation any contingency fee charged by any collection agency or law firm.
9. SUSPENSION. Up-Rev reserves the right to suspend all Work for the Customer without notice if Customer is past due on any payment. Customer acknowledges that if any such work suspension occurs, Up-Rev may not be able to immediately restart any Work upon full payment of Customer’s account balance and that the forecasted schedule(s) for Work so interrupted will be adversely affected, likely to a greater extent than the number of days that the suspension/stoppage was in place. Up-Rev may also incur additional costs to wind down and then restart its work. Customer agrees to pay all such costs upon notice of same.
10. CANCELLATION OF TASK ORDER. Up-Rev may, in its sole and absolute discretion, cancel any Task Order or Purchase Order before its completion. Customer may cancel any Task Order or Purchase Order before its completion by giving Up-Rev at least 30 days’ written notice of such cancellation and paying the lesser of: (a) $1,000.00 or (b) 5% of the labor costs Up-Rev forecasts will be charged after the date of such cancellation.
11. TERMINATION FOR CAUSE. Either party may terminate this Agreement(s) before the Expiration Date by giving written notice to the other party at least 5 days before the effective termination date (the “Effective Termination Date”) if:
11.1. the non-terminating party makes a general assignment for the benefit of creditors;
11.2. a petition in bankruptcy or under any insolvency, receivership or liquidation law is filed by or against the non-terminating party and such petition is not dismissed within 30 days after it has been filed; or
11.3. the non-terminating party breaches a material provision of this Agreement and such breach is not cured within 10 days after written notice from the non-breaching party.
12. EFFECT OF TERMINATION. Within 15 days of the date of Up-Rev’s notice of termination, Customer shall pay Up-Rev for all Work performed through the Effective Date of Termination and pay Up-Rev for all costs related to shipping and restocking of materials purchased by Up-Rev on behalf of Customer. Customer shall pay Up-Rev the sum of any non-refundable expenditure commitments made by Up-Rev before the Effective Date of Termination.
13. FORCE MAJUERE. Up-Rev shall have no liability for delays or any other breach of its obligations resulting from an Act of God, war, riot, explosion, accident, hurricane, act of government, work stoppage, pandemic, default of subcontractor or supplier of materials, or any other cause beyond the reasonable control of Up-Rev.
14. NON-SOLICITATION. Customer agrees that, during the term of the Engineering Services performed and for one (1) year thereafter, Customer shall not directly or indirectly recruit or solicit, offer employment to, induce, recruit, or hire any employee, independent contractor, or representative (collectively, “Employee”) of Up-Rev. The instant provision is an independent covenant. If at any time during the term of this Agreement or during the 12-month period following termination or expiration of this Agreement, Customer directly or indirectly hires, solicits, or otherwise engages an Employee, then within 30 days after the Customer’s breach of this provision, Customer agrees to pay Up-Rev a one-time fee (the “Buyout Fee”) equal to 33% of the greater of: (i) the Employee’s annual salary, or (ii) the Employee’s annualized compensation for the first year of service calculated based upon their first month’s service to the Customer, regardless of whether the Employee remains employed or otherwise engaged by Customer for a year or any other amount of time. Additionally, one year after such engagement by Customer if the Employee’s actual first year compensation (including bonuses and any other amounts paid to Employee by Customer) exceeds the amount of the Buyout Fee, then the amount of the Buyout Fee shall be recalculated using the Employee’s actual first year compensation, and Customer shall pay the increased Buyout Fee within 30 days after Employee’s one-year anniversary with Customer.
15. COOPERATION. Customer shall provide such access to its information and property as may be reasonably determined by Up-Rev to permit Up-Rev to perform its obligations hereunder. Customer acknowledges that any delays in Customer’s response to Up-Rev’s request for information, property, consent or otherwise may result in a delay in Up-Rev’s performance and Up-Rev’s ability to perform under any forecasted delivery schedule.
16. INDEPENDENT PARTIES. It is the express intention of the parties to this Agreement that Up-Rev is an independent contractor, and is classified by the Customer as such for all purposes, including, but not limited to employee benefit purposes, and is not an employee of, agent for, joint venture with, partner of, master/servant with or any other special relationship with the Customer. Both parties understand and agree that the Up-Rev may perform services for others during the term of this Agreement. Up-Rev shall have no authority to assume, create, or enlarge any obligation or commitment on behalf of the Customer without the prior written consent of the Customer.
17. INTELLECTUAL PROPERTY.
17.1. Definition. For purposes of this Agreement, “Intellectual Property” means (a) inventions of any kind (whether patentable or not, and whether or not reduced to practice), all improvements thereto and all patents, patent applications, and patent disclosures (whether or not filed), together with all reissuances, divisionals, continuations, continuations-in-part, substitutes, extensions, and re-examinations thereof, as well as any foreign counterparts of any of the foregoing; (b) all copyrightable works and materials and all copyrights including all applications, registrations, and renewals thereof; (c) ideas expressed in any tangible or electronic medium of expression; (d) trade secrets, proprietary formulations, know-how, show-how, research and development results, projections, analyses, models, and other technical information and technology; € technical data; (f) computer software; (g) technical know-how; (h) trademarks and servicemarks, both registered and unregistered, as well as all applications, registrations, and renewals thereof; (i) any other legally recognized form of intellectual property; and (j) all rights in or to the foregoing.
17.2. Ownership. Until Customer has fully paid all open invoices, Up-Rev shall retain the exclusive rights and title to the defined work products, deliverables, and Intellectual Property which Up-Rev has created or developed during the unpaid invoicing period(s). Up-Rev and Customer agrees that all Intellectual Property created, invented, or developed by Up-Rev or by Up-Rev jointly with Customer, which is related in any way to any products developed or work performed by Up-Rev under this Agreement shall be jointly owned by Customer and Up-Rev. However, Up-Rev shall not use or provide said Intellectual Property to others to develop products which compete with Customer’s products.
18. LIMITATION OF LIABILITIES. EXCEPT AS PROVIDED UNDER THIS AGREEMENT (WHETHER IN CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY), NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT SHALL BE LIMITED TO THE LESSER OF (a) THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, OR (b) $100,000, AND IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED $200,000.
19. EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UP-REV SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOST REVENUES, NOR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES REGARDLESS OF HOW SAME WERE CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT UP-REV HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ALL CASES, UP-REV’S MAXIMUM LIABILITY SHALL NOT EXCEED THE SUM INDICATED BY SECTION 18(a) HEREOF.
20. INDEMNIFICATION. If either Party uses, incorporates, or otherwise interacts with third-party software, hardware, device, or other item (collectively, a “Third Party Product”) or provides such Third Party Product for use, incorporation, or other interaction into a Task Order, the providing Party represents and warrants to the other Party that it has all rights associated with such use, incorporation, modification, world-wide sale and distribution, or other interaction of/with the Third Party Product, including any use, incorporation, or other interaction by either Party. The providing Party shall defend the other Party against any claim, demand, suit, proceeding, or liability made or brought against the other Party by a third party alleging any infringement or misappropriation of the intellectual property rights of a third party or a violation of any related or applicable law (a “Claim Against Other Party”). The providing Party shall indemnify the other Party for any costs related to the defense against such claim, including, but not limited to, damages, attorney fees and costs finally awarded against the other Party as a result of, or for any amounts paid by the other Party under a court-approved settlement of, a Claim Against Other Party, as well as other Party’s internal expenses related to such action.
21. GOVERNING LAW/JURISDICTION/VENUE. This Agreement shall be construed, interpreted and enforced in accordance with the laws of the State of Florida without regard to the principles of conflict of law thereof. The parties agree that any litigation or other dispute resolution relating to this Agreement in any way shall take place exclusively in Brevard County, Florida. Both parties hereby consent and irrevocably waive all objections to the personal jurisdiction of, and the exclusive venue and forum in, the state courts in or governing Brevard County, Florida for the resolution of any dispute between the parties related to this Agreement. The parties waive the right to remove any suit to federal court.
22. ATTORNEY’S FEES. If either party commences an action against the other to enforce any of the terms hereof or because of the breach of any of the terms hereof, the prevailing party shall be entitled to recover from the non-prevailing party its reasonable attorney’s fees and expenses incurred in connection therewith, including but not limited to “fees for fees”. The right to such attorney’s fees and expenses shall be deemed to have accrued upon the commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. Except as otherwise provided herein, interest on amounts which are past due, including without limitation attorney’s fees and costs, shall accrue at the rate of 18% per annum from the date of the default and shall apply both pre-judgment and post-judgment.
23. ANTI-WAIVER. The failure of any party to enforce any of its rights arising by reason of any breach of any term or condition hereof by the other party will not constitute a waiver of such breach. No custom or practice arising between the parties in the course of administering the Agreement will be construed to waive any party’s right to: (i) insist upon the performance of the other party of any term or condition in the Agreement, or (ii) exercise any rights provided to it on the account of any breach of such term or failure of such condition. Customer agrees that Customer’s sole and exclusive defense to payment under this Agreement shall be Up-Rev’s failure to provide the agreed-upon Engineering Services and that Customer’s sole and exclusive remedy for a breach by Up-Rev shall be an action for breach of contract.
24. CONFIDENTIALITY. The parties shall not disclose any information relating to this Agreement to any person or entity other than each other, their professional and privileged advisors, and their spouses without written consent of the other party.
25. ENTIRE AGREEMENT. No oral statement or prior written material not specifically mentioned herein shall be of any force or effect and no change in or addition to this Agreement shall be recognized unless evidenced by a writing executed by all parties hereto.
26. NO RIGHT TO RELY. Nothing provided herein shall give any person or entity other than the parties hereto any right to rely on any of the rights or obligations hereunder and likewise there are no third-party beneficiaries to this Agreement.
27. NON-ASSIGNABLE. Nothing contained in this Agreement shall be construed to permit assignment by Customer of any of Customer’s rights or obligations under this Agreement, and such assignment is expressly prohibited. However, this provision shall not be interpreted to prohibit Up-Rev from subcontracting some or all work under this Agreement.
28. NOTICES. Whenever a notice is required to be given in writing under this Agreement, such notice shall be given by certified or registered mail, return receipt requested, and directed to the respective party at the party’s current mailing address.
29. SEVERABILITY. In the event any portion of this Agreement is declared void, invalid, or unenforceable by a court of competent jurisdiction, such portion shall be reformed as closely as legally permissible to the original language, failing which such portion shall be severed from this Agreement, and the remaining provisions shall remain in effect, unless the effect of such severance would be to substantially alter the Agreement or obligations of the parties, in which case the Agreement may, in Up-Rev’s sole and absolute discretion, be immediately terminated.
30. INFORMED CONSENT. The execution of this Agreement is made by them with their full informed knowledge, understanding and consent. They each acknowledge that they have had the opportunity to consult with an attorney if they choose to do so and that they are not relying on any statement, promise or representation made by any other Party or its counsel that is not expressly set forth herein.
31. SUCCESSORS. This Agreement shall be binding upon and inure to the benefit of the affiliates, successors, and permitted assigns of the parties to the full extent permitted by law.
32. BINDING AUTHORITY. The parties represent and acknowledge that the persons executing this Agreement below are authorized to bind the respective parties to this Agreement.
33. COUNTERPARTS. This Agreement may be executed in duplicate counterparts, all of which together shall constitute a single document upon execution by all parties. Facsimile, copies, or electronically transmitted signatures, including copies executed using DocuSign or similar electronic signing applications shall be sufficient as if originals.
34. VOLUNTARINESS. The parties agree that they have voluntarily entered into this Agreement in consideration of the mutual promises, covenants, and agreements contained herein, and not as a result of any intimidation, coercion, duress, or pressure from anyone else. The parties further waive the right to assert that they were induced to enter into this Agreement by anything other than the express terms and conditions hereof and expressly waive all inducements, whether fraudulent or otherwise.
35. CONSTRUCTION. Each of the parties hereto acknowledge and agree that they have actively and with full understanding participated in the drafting and negotiation of this Agreement, and for all purposes, therefore, this Agreement shall be deemed to have been drafted jointly by each of the parties. The parties further acknowledge and agree that all of the terms and conditions of this Agreement have been negotiated at arm’s-length and that this Agreement has been negotiated, prepared, and executed without fraud, and each Party hereby waives and releases any claim of, fraud in the inducement, duress, undue influence, or coercion of any kind or nature whatsoever having been exerted by or imposed by any Party. No provision of this Agreement shall be construed against or interpreted to the disadvantage of any party to this Agreement by any court or other governmental or judicial authority by reason of such party having or being deemed to have structured, dictated, or drafted such provision.
NAICS Codes:
541330, 541511, 541512, 541420, 541712
D-U-N-S Number:
966773025
CAGE Code:
6JCW7
Up-Rev, Inc. HQ1333 Gateway Drive
Suite 1020
Melbourne, FL 32901
Phone: 1.321.821.4918
Email: sales@up-rev.com
