Terms and Conditions
Up-Rev Terms and Conditions
In the absence of an executed agreement between parties, the following Terms and Conditions for the Order Acceptance will apply.
All sales of engineering services, product development services, and consulting services by Up-Rev (collectively referred to herein as “Engineering Services”) are subject to the following Terms and Conditions. All Proposals, Quotations or Task Orders issued by Up-Rev are an offer to sell Engineering Services pursuant to these Terms and Conditions. Up-Rev objects to any additional or different terms contained in any documentation submitted by Customer. 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.
1. 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. 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.
2. 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.
3. MATERIAL COSTS
- (a) 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, then Up-Rev will only charge a 5% material handling fee on all materials purchased in this manner. The material handling fee is based on 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.
- (b) 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. A 15% material handling fee (based on the gross material invoice total, including delivery costs and taxes) will be added to all material costs when exercising this option.
- (c) Default Option. In the event that Customer fails to timely procure any materials requested by Up-Rev for a Task Order or fails to denote on a specific Task Order its election of Section 3.2(a), Up-Rev, in its sole discretion, may procure such materials under the terms of Section 3.2(b).
- d) Restocking Fees. If the 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 also be responsible for any shipping and restocking charges incurred from the vendor supplying the materials.
4. 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. 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 set forth in this Section, Up-Rev makes no warranties or guarantees, whether express, implied, or statutory, regarding or relating to the Engineering Services provided. Up-Rev specifically disclaims all implied warranties of merchantability and fitness for a particular purpose with respect to the Engineering Services.
5. PAYMENTS Payment shall be made in U.S. dollars. Any payments received shall be applied, regardless of invoice number, first to any late fees outstanding, then to any material handling fees outstanding, and then to any outstanding principal balance or other fees at Consultant’s sole discretion.
6. PAYMENT TERMSStandard Payment Terms if not explicitly stated in each Task Order is NET 15 days.
7. LATE FEES.Payment not received on or before due date shall bear interest at the rate of 5% monthly from its due date until paid in full. If Up-Rev requires use of a collection agency to obtain payments from Customer, then Customer is responsible for paying all costs incurred for collection agency services.
8. WARRANTY DISCLAIMER. Up-Rev covenants and agrees that Up-Rev shall provide its Customers with Work of consistent quality compliant with all applicable federal, state, and local laws and regulations and in conformance with all applicable industry standards. EXCEPT AS EXPRESSLY PROVIDED HEREIN, Consultant MAKES NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING THE work products, deliverables, and intellectual property that ARE created or developed by Consultant during the course of work on the Task Orders, THEIR MERCHANTABILITY, OR THEIR FITNESS FOR ANY PARTICULAR PURPOSE.
9. SUSPENSION. Up-Rev reserves the right to suspend all Work for the Customer without notice if Customer is 7 days or more past due on any payment. Customer acknowledges that if any such work suspension/stoppage occurs, Up-Rev may not be able to restart any Work immediately upon restoration of Customers account balance to good standing and that the forecasted schedule(s) for Work so interrupted will be adversely affected, potentially on a greater basis than the number of days that the suspension/stoppage was in place.
10. CANCELLATION OF TASK ORDER. Up-Rev shall have the right to cancel any Task Order or Purchase Order prior to its completion. In order to affect such cancellation, in addition to giving Consultant written notice of such Task Order or Purchase Order cancellation, Customer shall pay the lesser of (a) $500.00 or (b) 5% of the labor costs forecasted to be charged after the date of such cancellation.
11. TERMINATION FOR CAUSE. Either party may terminate Agreement(s) prior to the Expiration Date by giving written notice at least 5 days before the effective termination date (the “Effective Termination Date”) to the other party 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 thereof is sent to the breaching party.
12. EFFECT OF TERMINATION. Within 15 days of the notice of termination, Customer will pay Up-Rev for all Work performed through the Effective Date of Termination as well as pay the Up-Rev for any costs related to the shipping and restocking of materials purchased by Up-Rev on behalf of the Customer. Customers payment obligations to Up-Rev include any non-refundable expenditure commitments made by Up-Rev prior to the Effective Date of Termination.
13. DELIVERY/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, act of government, work stoppage, default of subcontractor or supplier of materials, or any other cause beyond the reasonable control of Up-Rev.
14. NO-HIRE AGREEMENT. Customer agrees that, during the term of the Engineering Services performed and for a period of one (1) year immediately following, Customer will not directly or indirectly recruit or solicit to terminate, offer employment to, induce, recruit or hire any employee, contractor or Up-Rev of Up-Rev, for any reason.
- 14.1. If at any time during the term of this agreement or during the twelve (12) month period following termination or expiration of this agreement, the Customer directly or indirectly hires or otherwise engages an Up-Rev Employee or Associate (other than through Up-Rev), then within thirty (30) days after the start of such hiring/engagement the Customer agrees to pay Up-Rev a one-time fee equal to thirty-three percent (33%) of the greater of (i) the Up-Rev Employee or Associate’s annual salary, or (ii) the Up-Rev Employee or Associate’s annualized compensation for the first year of service calculated based upon their first month’s service to the Customer, in either case regardless of whether the Up-Rev Employee or Associate remains employed/engaged by Customer for an entire year. Additionally, such fee shall automatically be adjusted upward one year after such engagement if the Up-Rev Employee or Associate’s actual first year compensation (including bonus, etc.) exceeds the amount pursuant to the prior sentence, and such excess shall be due within thirty (30) days after such one year anniversary.
15. COOPERATION. The Customer shall provide such access to its information and property as may be reasonably required in order to permit the Up-Rev to perform its obligations hereunder. The Up-Rev shall cooperate with the Customer's personnel, shall not interfere with the conduct of the Customer's business and shall observe all rules, regulations and security requirements of the Customer concerning the safety of persons and property. 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 the 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; (e) 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
- (a) 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 that have been created or developed by Up-Rev during the course of work during the unpaid invoicing period(s).
- (b) 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 done by Up-Rev under this Agreement, shall be the joint property of Customer and Up-Rev. However, Up-Rev shall not use or provide said intellectual property to others to develop products that compete with the Customer’s products.
18. LIMITATION OF LIABILITIES. EXCEPT AS PROVIDED UNDER THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED SECTION 22, HEREUNDER, NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THE LESSER OF (a) THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT OR (b) $100,000.00, 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 AN AMOUNT EQUAL TO $200,000.
19. EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
20. INDEMNIFICATION. If either Party uses, incorporate or otherwise interact with third party software, hardware, device or other item (“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 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 or proceeding 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 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 irremovably waive all objections to the personal jurisdiction of, and the exclusive venue in, the state courts in or governing Brevard County, Florida for the resolution of any dispute between the parties related to this Agreement.
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