Terms and Conditions
1. Agreement. The entire integrated agreement between Syscon Precision Industrial, LLC (SPI); DBA SPI Automation (formerly known as Syscon Automation and Precision Automated Technology) and the Customer indicated in the attached SPI-issued proposal, quote or similar document consists of these Standard Terms and Conditions and such proposal, quote or similar document issued by SPI. Such agreement supersedes all previous and contemporaneous agreements, proposals and representations, written or oral, concerning the services, deliverables and project indicated in such proposal, quote or similar document issued by SPI to Customer. Any additional, conflicting or inconsistent Customer terms (whether set forth in a request for proposals, purchase order or acknowledgement or in any other document) are expressly rejected by SPI and are not a part of the parties’ agreement. Neither party may assign its rights and obligations under this agreement without the written consent of the other party; however, SPI may subcontract or delegate its performance or procurement obligations to other persons or entities, but will nonetheless be responsible to Customer for the performance of the services and delivery of the deliverables as required by this agreement. Both SPI and Customer agree that there are no third-party beneficiaries to this agreement.
2. Quotes and Changes. Prices proposed or quoted by SPI may be accepted by Customer within 15 days from receipt of the corresponding proposal, quote or similar document, unless withdrawn or modified earlier by SPI through notice to Customer. During the course of the performance of this agreement, either Customer or SPI may request changes to the scope of services or to the deliverables (including changes necessary to account for unanticipated conditions of the project site or the equipment or materials located at or to be provided to the project site or additional services arising from matters not covered by SPI’s limited warranties set forth below); such changes will be effective if the other party agrees to the change in writing or through its actions. If the change to the services or deliverables results in additional cost or delays in the performance of this agreement, SPI’s compensation for the project will be adjusted accordingly.
3. Schedule and Delays. In the event that performance of SPI’s services or delivery to Customer of the deliverables is delayed or disrupted by circumstances beyond the reasonable control of SPI (including without limitation changes to the scope of services or to the deliverables, delays by Customer or its separate consultants, contractors or vendors in providing information or proper materials and equipment, defects or non-conformities in services, materials, equipment or facilities provided by or through Customer, fire, natural disasters, civil disturbances, pandemics or epidemics, acts or inaction of governmental authorities, labor disputes, unavailability of materials or equipment at commercially reasonable prices, shipping delays, or supply chain disruptions), SPI will promptly notify Customer of such circumstances and SPI’s project schedule will be equitably extended and SPI’s compensation for the project will be adjusted accordingly.
4. Resource Assignments and Testing. SPI will assign technical resources of varying levels and hourly rates to the project at its sole discretion. No resources will be assigned or reserved for any project until this agreement has been accepted in writing by Customer. Both parties assume that the “industrial exemption” applies to the services required under this agreement, and Customer acknowledges that individuals not licensed as professional engineers may execute some or all of the services and create some or all of the deliverables for the project. Inspections and testing of the deliverables (including Factory Acceptance Testing or Site Acceptance Testing) will be conducted in accordance with the agreement (and in no event later than 15 days from Customer’s receipt of notice from SPI that the deliverables are available for inspection and testing). Services and deliverables will be deemed to have been accepted by Customer as complete and compliant with the requirements of this agreement upon the earlier of (a) successful completion of the testing described in this agreement, (b) Customer’s first use of the services or deliverables for the intended business operations (unless notice of any alleged defect or non-conformity is provided to SPI in writing within 15 days thereof), or (c) the date agreed upon by the parties.
5. Payments. Unless otherwise specified in the SPI-issued proposal, quote or similar document, prices for the services and deliverables do not include any sales tax, use tax, value-added tax, duties, custom charges, or similar expenses; Customer will be solely responsible for and will pay all such expenses. Payments are due within 15 days of Customer’s receipt of each SPI invoice issued from time to time during the performance of this agreement (unless a different time period is specified in the SPI-issued proposal, quote or similar document). Any delinquent amounts will be subject to a 1.5% per month financing charge (or such lesser amount required by law), and Customer is responsible for all costs of collection of delinquent amounts incurred by SPI (including reasonable attorneys’ fees). Failure to make full payment when due shall entitle SPI to suspend its performance of this agreement until all past-due amounts are paid and SPI’s schedule and compensation for the project are adjusted to account for such suspension and remobilization. For clarity, Customer’s payment obligations to SPI are not contingent on Customer’s receipt of funds from any third-party, and SPI retains all rights (including security interests in the deliverables and lien rights applicable by law) to secure payment of amounts due from Customer under this agreement. Title to all deliverables shall remain with SPI until payment for such deliverables is received from Customer, and software licenses granted to Customer will not commence until payment for the corresponding deliverables and licensing fees is received by SPI.
6. Reimbursable Expenses. Unless otherwise specified in the SPI-issued proposal, quote or similar document, whenever it is necessary for a SPI employee to work at a Customer-designated location or an overnight stay is required, travel and living expense charges (milage, meals, lodging, incidentals, etc.) will be added to SPI’s compensation for the project; if air travel is required to reach the work location, Customer will be responsible for air fare costs in addition to the travel time. All travel charges and living expenses will be assessed a 10% administrative fee.
7. Limited Warranties. For a period of (a) 90 days from the performance of SPI’s services or (b) one year from delivery of SPI-designed and -created deliverables, as applicable, SPI warrants solely to Customer that (a) the services provided under this agreement will be performed in a manner consistent in all material respects with current and generally recognized standards in the industry and (b) the deliverables provided under this agreement will be delivered in substantial conformity in all material respects with the specifications set forth in the SPI-issued proposal, quote or similar document. However, in no event will SPI be responsible for (a) any modifications to any services or deliverables made by anyone other than SPI; (b) damages caused by misuse, improper operation or improper or insufficient maintenance of any services or deliverables or by causalities; (c) normal wear and tear, or damages caused by other causes beyond the reasonable control of SPI; (d) any data loss or corruption or (unless caused by SPI’s intentional misconduct) personal information data breach; or (e) any alleged defects or performance deficiencies in any services or deliverables that arise from SPI’s compliance with designs or other criteria, requirements or instructions provided by or through Customer or that arise from defects or non-conformities in services, materials, equipment or facilities provided by or through Customer or its separate consultants, contractors or vendors. Modifications (including changes in any capacity, programming, or mechanical or other elements) to any services or deliverables made by anyone other than SPI, and misuse, improper operation or improper or insufficient maintenance of any services or deliverables by Customer, shall void any warranty otherwise applicable to such services or deliverables. Unless a warranty service plan is specified in the SPI-issued proposal, quote or similar document, deliverables not designed and created by SPI are warranted only to the extent of the express written warranties of the manufacturers of such items (which will be delivered to Customer by SPI as a part of the project). SPI MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND ANY OTHER WARRANTIES (INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE/AGAINST INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE) ARE EXPRESSLY DISCLAIMED BY SPI TO THE FULLEST EXTENT PERMITTED BY LAW. If any services or deliverables require correction or replacement in accordance with the warranty provided hereunder, SPI will provide such correction or replacement within a reasonable period of time following receipt of written notice from Customer identifying such breach of warranty; such obligation excludes expediated freight, transportation, lodging and (except as required solely for the performance of such warranty service) labor.
8. Limitations of Liability. In no event will either party be liable for any incidental, special, punitive or consequential damages of any kind, including without limitation loss of use, productivity, reputation, financing, business opportunities or profits (other than SPI’s profit on the services and deliverables themselves), even if the party has been advised of the possibility of such damages and regardless of the theory of liability. MOREOVER, TO THE FULLEST EXTENT PERMITTED BY LAW, REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR STRICT LIABILITY), IN NO EVENT WILL SPI’S TOTAL AGGREGATE LIABILITY RELATED TO THE SERVICES, DELIVERABLES, PROJECT OR THIS AGREEMENT EXCEED THE AMOUNT OF COMPENSATION PAID BY CUSTOMER TO SPI FOR THE PROJECT. Any claim or cause of action by Customer against SPI related to the services, deliverables, project or this agreement must be commenced through formal legal proceedings no later than 15 months from last date of service or delivery by SPI for the project.
9. Insurance and Indemnity. SPI will maintain its usual and customary general liability, automotive liability, and workman’s compensation insurance during the performance of this agreement. During the performance of this agreement and thereafter, Customer will maintain usual and customary builder’s risk and property insurance for the facility where the services and deliverables will be provided or utilized on a replacement cost basis (including coverage for loss of use, business interruption and delay in completion); such insurance will include a standard waiver of subrogation in favor of SPI. To the fullest extent permitted by law, Customer shall defend, indemnity and hold harmless SPI from and against all claims, liabilities, damages, and expenses (including reasonable attorneys’ fees) arising out of (a) any bodily injuries (including death) or damage to property resulting from Customer’s failure to maintain the health and safety of the project site or the equipment or materials located at or to be provided to the project site, including any misuse or improper operation of SPI’s services or deliverables, or resulting from Customer’s negligent acts or omissions, (b) intellectual property infringement claims related to any designs or instructions provided by or through Customer or any equipment or materials located at or to be provided to the project site by third parties, or resulting from Customer’s violation of the limited licenses to the deliverables (including Customer’s failure to maintain or comply with third-party End User License Agreement and similar requirements), or (c) Customer’s violation of applicable laws, including any failure to comply with export and use restrictions (such as Export Administration Regulations maintained by the United States Department of Commerce that may be applicable to the services and deliverables provided by or through SPI under this agreement).
10. Intellectual Property. SPI retains all rights, title and interest in its services and deliverables, including patents and copyrights; however, upon full payment of the project compensation to SPI, Customer will be deemed to have been granted a non-exclusive, non-transferable, royalty-free, perpetual license to use the services and deliverables created by SPI under this agreement for the purposes contemplated in the SPI-issued proposal, quote or similar document. Unless an alternative licensing arrangement is specified in the SPI-issued proposal, quote or similar document, Customer’s use of the deliverables (including third-party software) provided under this agreement not created by SPI is subject to Customer’s compliance, at its own cost, with all applicable third-party End User License Agreement and similar requirements. Customer may not sell, distribute, sublicense, assign or transfer its license to the services and deliverables provided by or through SPI without the prior written consent of SPI, nor may Customer reverse engineer or make copies (other than usual and customary disaster recovery and archival copies) of the services or deliverables provided by or through SPI.
11. Termination. If either party fails to comply in all material respects with its obligations under this agreement (including without limitation any failure by Customer to make full and timely payments to SPI), the other party may provide written notice of such default to such defaulting party and, unless such failure is cured within 30 days of receipt of such notice, such party may terminate this agreement by providing written notice to the defaulting party. Subject to the terms of this agreement (including Paragraph 8 above), the non-defaulting party will be entitled to recover actual damages from the defaulting party as provided by this agreement and applicable law to account for such termination. Once this agreement has been accepted by the parties, it may not be cancelled without the written consent of both parties except as provided in this Paragraph 11 (and, in all cases, SPI shall be entitled to payment for all services performed and deliverables provided or created, in whole or in part, prior to the effective date of such termination of this agreement).
12. Governing Law and Dispute Resolution. The agreement is governed by, and will be construed in accordance with, the laws of State of Utah and the United States of American (without regarding to their choice of law or conflict of laws principles). Customer and SPI agree that this agreement is predominately for the performance of services, not for the sale of goods, and further agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to their agreement. If any term of this agreement is found to be unenforceable, the remaining terms will remain in effect. The failure of either SPI or Customer to exercise any rights under this agreement will not be deemed a waiver of such right except as agreed in writing or as otherwise set forth in this agreement. In the event Customer and SPI cannot resolve any claim or dispute between them arising out of or related to the services, deliverables, project or this agreement through direct negotiation, such matter shall be subject to arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Such arbitration proceedings will be held exclusively in Sandy, Utah, USA before a single arbitration, and the prevailing party (as determined by the arbitrator) will be entitled to recover from the other party all costs incurred in resolving the dispute, including reasonable attorneys’ and expert fees and the costs of arbitration. The arbitrator’s award shall be final and may be entered as a judgment in any court with jurisdiction.
13. Limitation on Recruiting. To the extent permitted by law, except as otherwise authorized in advance in writing by SPI, Customer will not directly or indirectly solicit the employment of, or attempt to establish a contract or work relationship with, any SPI employee involved in the performance of this agreement during the term of this agreement and for one year following the completion of all services and delivery of all deliverables for the project; provided, however, that such limitation will not restrict Customer from making general employment solicitations through media that is not targeted at SPI’s employees.
(Last Updated 2/21/2023)