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National Technical Systems Test Systems Engineering Standard Terms & Conditions
Billings and Terms of Payment
The bid from NTS Test Systems Engineering (NTS-TSE) formerly known as B & B Technologies, Inc. (BBT) states the net terms in days as well as the milestones that will be billed. The purchaser shall pay the purchase price of each milestone (including the price to the purchaser of goods and services) in full within the number of days stated in the bid after services are rendered or goods are shipped. In the event that part of an order is shipped, the purchaser shall pay the purchaser's price in full for the goods shipped, including labor performed on or with said goods, within the number of days stated in the bid after shipment. All invoices from NTS-TSE unpaid after the due date shall bear interest of 2% per month. NTS-TSE may, at its option, cease to perform services or deliver goods to the purchaser, upon the purchaser's failure to make timely payment. In the event that collection of any amounts due hereunder are referred to an attorney by NTS-TSE, purchaser shall bear all costs of collection, including but not limited to, NTS-TSE's reasonable attorney's fees.
If, in the judgment of NTS-TSE, the financial condition of the purchaser at any time does not justify continuance of the production or shipment on the terms specified, NTS-TSE may require full or partial payment in advance. In this case payment for all services rendered and goods purchased will become due within the stated net terms.
If any milestone is delayed by the purchaser the milestone becomes due after the stated number of net days from when NTS-TSE is prepared to deliver the milestone.
Escalation of Costs
Due to unstable controls on materials purchased by NTS-TSE for purchaser, NTS-TSE reserves the right to pass on any increase in price from our suppliers during the life of the contract.
If the contract extends beyond one year or beyond the agreed upon contract term, the remaining work will be billed at higher labor rates if standard NTS-TSE labor rates have increased.
Escalation (Project Dispute)
In the event that purchaser is unsatisfied with the NTS-TSE personnel's performance on the project, purchaser may choose to escalate the dispute. This escalation is performed by informing NTS-TSE in writing of the issue. NTS-TSE will assign the dispute to a senior manager who will work with purchaser and all involved NTS-TSE personnel to resolve the issue quickly. Email NTS-TSEEscalation to begin the process.
Warranty
LIMITED WARRANTY-HARDWARE. NTS-TSE hardware products are warranted against defects in materials and workmanship for a limited period of ninety (90) days from the date NTS-TSE ships the products to customer ("Delivery Date"). Customer must obtain a Return Material Authorization number from NTS-TSE before returning any Products under warranty to NTS-TSE.
Customer shall pay expenses for shipment of repaired or replacement products to and from NTS-TSE. After examining and testing a returned product, if NTS-TSE concludes that a returned product is not defective, customer will be notified, product will be returned at customer's expense, and a charge will be billed for examination and testing.
This Limited Warranty is void if failure of the products has resulted from accident, abuse, misapplication, improper calibration by Customer, or unauthorized maintenance or repair.
LIMITED WARRANTY-SOFTWARE. NTS-TSE software is warranted against bugs and errors for a limited period of one (1) year from the date NTS-TSE ships the Software to Customer ("Delivery Date"). This Limited Warranty is void if failure of the Software has resulted from modifications, misapplication, improper installation by Customer, or unauthorized third party.
CUSTOMER REMEDIES. NTS-TSE 's sole obligation (and Customer's sole remedy) with respect to the foregoing Limited Warranty shall be, at its option to, return the fees paid or repair/replace any defective Products provided that NTS-TSE receives written notice of such defects during the applicable warranty period. Customer may not bring an action to enforce its remedies under the foregoing Limited Warranty more than one (1) year following the accrual of such cause of action.
NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE PRODUCTS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND NO OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, ARE MADE WITH RESPECT TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY OTHER WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING.
NTS-TSE DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE PRODUCTS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE, AND DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE. NTS-TSE EXPRESSLY DISCLAIMS ANY WARRANTIES NOT STATED HEREIN.
OTHER MANUFACTURER WARRANTIES. Some hardware sub-assemblies incorporated into a NTS-TSE Product have their own Manufacturer Warranty. Any such warranty shall take precedence over the above-stated Limited Warranty.
Such sub-assemblies include but are not limited to: National Instruments hardware, APC Smart UPS, Hoffman Engineering Enclosures, Omega Engineering Pressure Transducers, and Ingersoll air compressors. NTS-TSE will assist customer in returning any material still under a valid manufacturer warranty, as per the manufacturer's warranty conditions. Customer must obtain a Return Material Authorization number from NTS-TSE before returning any Products under warranty to NTS-TSE.
Start of Warranty Period. For the purpose of start of warranty period, acceptance of the work shall occur on the earliest following events:
| a. | the date of first use by the purchaser or first use for the benefit of the purchaser, whether such use is partial or complete, | |
| b. | the date of completion of the start-up or commissioning, | |
| c. | 30 days after NTS-TSE has delivered to the purchaser the matter under contract, or 90 days after NTS-TSE has been caused to stop work for any reason beyond NTS-TSE's control, or | |
| d. | payment is made. |
Insurance
The responsibility for loss or damage of the equipment specified herein shall be purchaser's from the time of shipment. Purchaser is responsible for providing and maintaining adequate insurance for the equipment specified herein against loss or damage by fire or other causes between the time of shipment and final payment.
NTS-TSE shall arrange, pay for and maintain in full force and effect, at all times during the performance of supervisory or field engineering work and until final acceptance of that work, policies of insurance issued by carriers acceptable to the purchaser which afford the following coverage:
| a. | Worker's Compensation including employer's liability | |
| b. | General Liability |
Non-Solicitation of Employees
Purchaser specifically agrees that purchaser, on its own behalf or on behalf of any other company, will not hire, solicit, attempt to solicit, or cause to be solicited, and employee of NTS-TSE for employment with its corporation, or company, or subcontractor, without the express written consent of NTS-TSE during the time of any active contracts between purchaser and NTS-TSE and for a period of one year subsequent to the conclusion of all contracts.
Intellectual Property
NTS-TSE shall retain all right, title and interest in all intellectual property including but not limited to all drawings, specifications, software prepared by NTS-TSE, all copyrights, patents and other intellectual property rights. The purchaser shall not use any drawings or specifications prepared by NTS-TSE, except for the purpose of confirming the quality of the design and manufacturing of the products set forth in the proposal. Purchaser shall not photocopy, duplicate or in any way copy any drawings, specifications or software which may be supplied by NTS-TSE; provided, however, that the purchaser may make copies of and use the software for purchaser's internal purposes only, not for rendering services or selling products to third parties. The purchaser shall not sell, license, assign or transfer the intellectual property or any interest therein to anyone.
Ownership of Software
License of Software for Use by End User The software prepared by NTS-TSE for this contract is the sole property of NTS-TSE. NTS-TSE shall retain all right, title and interest in and to such software, including but not limited to all copyrights, patents and other intellectual property rights.
| (a) | If purchaser is the "end-user" of the work, subject to the other terms and conditions set forth herein, NTS-TSE grants to purchaser a non-transferable, non-exclusive license to use the software for purchaser's internal purposes only. The purchaser shall not sell, license, disclose, give away, assign or transfer the software or any interest therein to anyone. The purchaser, however, may engage other persons or firms to modify or add to NTS-TSE's software for no purpose other than for purchaser's internal benefit and, shall first execute and deliver to NTS-TSE a confidentiality agreement indicating they shall not otherwise use, disclose or give away or transfer any interest in the software to anyone. If the purchaser makes additions or modifications to the software, purchaser will own such additions and modifications, including all intellectual property rights in the additions and modifications. | |
| (b) | If purchaser is a "value-added reseller" of systems that incorporate work by NTS-TSE, subject to the other terms and conditions set forth herein, NTS-TSE grants to the purchaser a non-transferable, non-exclusive license to use NTS-TSE's software for purposes of preparing a system for resale and for one subsequent use by only one third party under the provisions of the following section, titled "License of Software for Use by a Third Party". Purchaser shall not otherwise use, license, disclose, give away, or assign any interest in NTS-TSE's software. Further, any person or firm engaged by Purchaser to modify or add to NTS-TSE's software may modify or add to the software for no purpose other than for purchaser's benefit and shall not otherwise use, disclose, or transfer any interest in the software to anyone. |
| (a) | Purchaser must incorporate the software and license it to the third party as part of a system for which the purchaser is a "value-added reseller"; | ||
| (b) | The third party must use the software for the purpose of operating the purchaser's system only and for no other purpose; | ||
| (c) | The third party must acknowledge that NTS-TSE retains all right, title and interest in and to the software, including but not limited to all copyrights, patents and other intellectual property rights; | ||
| (d) | Purchaser must inform the third party in writing that the third party has a non-transferable, non-exclusive license to use the software for such third party's internal purposes only, and only for as long as such third party shall not be a NTS-TSE competitor (upon such third party acting as a NTS-TSE competitor, the license shall terminate); | ||
| (e) | Upon the sale of such a license in the software by a "value-added reseller" purchaser, purchaser's license in the drawings, specifications and software shall terminate. |
Software License Transfer During the course of the project it may become necessary for NTS-TSE to accept certain third-party software licenses on behalf of the purchaser. Purchaser grants to NTS-TSE power of attorney for the purpose of accepting these licenses. Upon delivery of the system, purchaser will sign a document stating that purchaser accepts all licenses for all software loaded on the system.
Limits of Liability
In no event, regardless of cause, shall NTS-TSE assume responsibility or be liable for (a) penalties or penalty clause of any description, or (b) indemnification of purchaser or any other third party for costs, damages, or expenses each arising out of or related to the goods or services of this order or for certification unless otherwise specifically provided herein or (c) for indirect, incidental, special, or consequential damages under any circumstances including any loss, injury or damages. NTS-TSE's maximum liability, including direct damages, shall not exceed the amount of the purchase order. This limitation of NTS-TSE's liability will apply regardless of the form of action, whether in contract or tort, including negligence.
Termination of Contract
Cancellations or stop-work requests by Purchaser on any order or part thereof, must be made in writing. Purchaser agrees to pay NTS-TSE's standard contract labor rate for all labor incurred, NTS-TSE's net material cost for all materials purchased including standard markup and any restocking charges incurred.
In addition to the above fees, a demobilization fee of 5% of the total contract value will be assessed to account for costs associated with unexpected termination of a project. Similarly, a mobilization fee of 5% of the total value of the contract will be assessed if a terminated project is re-started by purchaser to cover costs of re-starting the project.
Accelerated / Decelerated Pace of Project Execution
Fast Track Purchaser acknowledges that if purchaser requires NTS-TSE to perform on an accelerated schedule (i.e. pace faster than NTS-TSE's normal business procedure as dictated by NTS-TSE's standard business practices), the risk of errors in the design and development of hardware and software increases, as do certain costs such as but not limited to express shipping of incoming purchases to NTS-TSE, charges for expedited manufacture, development and/or delivery of hardware and/or software to NTS-TSE, and express shipping to purchaser by NTS-TSE. Purchaser agrees that upon Purchaser's request to NTS-TSE to perform on an accelerated basis, purchaser will compensate NTS-TSE (at NTS-TSE's most current prevailing rates) for the additional costs incurred and work required as a result of the accelerated pace of project execution. Execution of an accelerated pace will be at the discretion of NTS-TSE, and may not be available depending upon various circumstances, including availability of resources.
Slow Track A decelerated pace of project execution also causes additional work and costs. If purchaser decelerates the pace of project execution, purchaser shall bear the additional costs and expenses associated with such deceleration, including but not limited to paying NTS-TSE for "spin-up" time (inefficiency caused by starting and stopping) at the most current prevailing NTS-TSE rates.
Changes in Scope
Changes to work that are considered by NTS-TSE to be beyond the scope of the present contract will be addressed by declaring to purchaser in writing the complete scope, cost, and schedule impact of the desired changes. NTS-TSE will only take action on the changes when purchaser has responded in writing that he agrees with the scope, cost and schedule impacts and, if necessary, has issued an appropriate purchase order.
Confidentiality
Any information, suggestions, or ideas transmitted by purchaser to NTS-TSE in connection with performance hereunder are not to be regarded as secret or submitted in confidence except as may be otherwise provided in writing by purchaser and signed by a duly authorized representative of NTS-TSE.
Dispute Resolution
Any controversy, claim or dispute of whatever nature arising between the parties, including but not limited to those arising out of or relating to the contract between the parties or the construction, interpretation, performance, breach, termination, enforceability or validity of the contract, including the determination of the scope of this arbitration clause, shall be determined by arbitration by one arbitrator in the state of New Mexico, governed by the Federal Arbitration Act and administered by the American Arbitration Association under its commercial arbitration rules, except that:
| (a) | Persons eligible to be selected as arbitrators shall be limited to lawyers with experience in business law for at least fifteen years who have a hands on knowledge and ability to work with computers and preferably a knowledge regarding the general purpose and functionality of a data acquisition and/or control system and | |
| (b) | Each party shall be entitled to strike on a peremptory basis, for any reason or no reason, any or all of the names of potential arbitrators on the list submitted to the parties by NTS-TSE as being qualified in accordance with the criteria set forth in this arbitration clause. If the parties cannot agree on a mutually acceptable arbitrator from the one or more lists submitted by the American Arbitration Association, the local Bar Association shall designate three persons who, in his or her opinion meet the criteria set forth in subparagraph (a) immediately above, which designees may not include persons named on any list submitted by the American Arbitration Association. Each party shall be entitled to strike one of such three designees on a peremptory basis, indicating its order of preference for the remaining designees, and the selection of the arbitrator shall be made from among those designees who have not been so stricken by either party in accordance with their indicated order of mutual preference. The arbitrator shall base their award on the contract between the parties including these Terms and Conditions, applicable law and judicial precedent and, unless both parties agree otherwise, shall include in such award a statement of reasons upon which the award is based. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. |
Venue and Jurisdiction
These terms and conditions shall be construed in accordance with the laws of the state of New Mexico.
Limits of Actions
Any action for breach of this contract must be commenced within one year after the cause of action occurs, and no such action that is not commenced within such a period may be maintained, except any action for non-payment of the purchase price by purchaser.
Storage of Materials On Site
On-site is defined as any location related to the purchaser where material will be stored or used in any fashion during any stage of this contract. All materials delivered or stored on site are to be considered delivered to the purchaser's care and custody. Any loss or damage to any product of any type while on-site is the sole responsibility of purchaser.
Taxes
All prices shall be subject to the addition of any existing or future tax or governmental charge upon the engineering services, production, shipment, installation, sale or use of the products or services described herein to the extent that NTS-TSE is or shall be required by law or regulation to collect or pay the same. The amount of such taxes shall be paid to NTS-TSE immediately upon request or, in lieu thereof, a tax exemption certificate, in a form satisfactory to the taxing authority, must be presented to NTS-TSE.
Returns
All products and services described herein are sufficiently unique to prohibit any return for full or partial credit, other than warranty, unless specifically stated otherwise in the proposal.
NTS-TSE is not responsible for the loss of or damage to products returned to it, unless notified in advance of the return and the purchaser is given a return authorization number which is prominently placed upon the shipping documents and packing container.
Staffing
To allow us to be able to manage our participation in the project most effectively, NTS-TSE reserves the right to determine the personnel to perform the work, including the option to use sub-contractors, although we will make reasonable attempts to honor any requests for specific individuals. NTS-TSE further reserves the right to make personnel changes during the performance of the contract, to control the number of staff assigned, and to adjust their relative commitment to the project.
Purchaser's Obligation
At all times, the purchaser is obligated to act in good faith and in proper and appropriate manner including but not limited to working with NTS-TSE to ensure NTS-TSE's product performs as intended, and if not, to clearly identify areas that require attention.
Force Majeure
If NTS-TSE is unable to perform the obligations of this agreement due to wars, acts of terrorism, riots, acts of governmental authorities, acts of God, civil disturbances, explosions, and other such acts, NTS-TSE may terminate and have no liability under the terms of this agreement.
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