TERMS AND CONDITIONS
The following Terms and Conditions apply to all quotations and/or Agreements between Automated Control Concepts, Inc. (“ACC”) and the purchaser of ACC services (“Customer”).
Prices quoted are valid for sixty (60) days from the date of quotation unless otherwise agreed to in writing by ACC. Prices do not include any applicable taxes such as sales use, excise, property, etc. or associated fees. All taxes shall be the responsibility of the Customer.
3.0 ACCEPTANCE OF ORDER
Customer purchase order shall be based on ACC written quotation and will be subject to final review and acceptance by ACC.
Unless otherwise indicated, all shipments are made F.O.B., Neptune, N.J. with freight charges prepaid by ACC and billed to Customer. Quoted shipment dates are approximate and are contingent upon timely receipt of Customer’s purchase order and support documentation. ACC reserves the right to request minor adjustments to the shipment schedule due to the nature of work being performed. If Customer causes unreasonable delays in scheduled shipments, then ACC reserves the right to arrange for storage of Customer’s products at ACC or approved warehouse and invoice Customer for actual storage/transportation charges.
ACC invoices are due and payable within thirty (30) days of receipt. All invoices unpaid after thirty (30) days shall bear interest at 1 1/2% per month or part thereof. In addition to contract prices, Customer shall assume and pay all sales, use, excise, property and/or other taxes and fees associated with the product/service being purchased. If, due to nonpayment or excess delays in payments, ACC is required to employ an attorney or collections agency, then Customer agrees to be responsible for reasonable fees for collecting.
6.0 CHANGE ORDERS
Any changes, modifications or deletions to the scope of the work in the original purchase order are to be made in writing by Customer. ACC will respond promptly to Customer on the impact, in terms of prices, delivery, and system function, that this change will cause. Prices quoted for such changes are valid for sixty (60) days.
ACC shall not be responsible for delays or non-delivery due to causes beyond the reasonable control of ACC, including but not limited to: acts of God, acts of Civil or military authority, war, riots, natural disasters, fires, strikes, lockouts, pandemics, delays in transportation or inability to obtain necessary labor and materials. ACC will promptly notify Customer of such circumstances in writing and ACC will be granted an equitable extension of the time to meet its obligations under the proposal and, where needed to make ACC whole, a compensation adjustment. If Customer causes a delay of thirty (30) days or more to the start of a project or fifteen (15) days or more to a project in-progress due to lack of Customer supplied information or materials, then ACC reserves the right to impose a delay charge. This charge will be at a rate of 1 1/4% of original contract price per month for the duration of the delay. Customer may request, and ACC will consider, a request in writing for ACC to place a project on hold for a specified period. ACC will advise, in writing, of the impact of the delay on price and delivery.
8.0 SUSPENSION AND TERMINATION.
If Customer fails to comply with its obligations under the written quotation or these Terms and Conditions (including without limitation the full and timely payment to ACC, ACC may provide written notice of such default to Customer and may thereafter suspend further performance until such default is cured by Customer. When such default is cured by Customer, the amount to be paid for the scope of work will be equitably increased to account for ACC’s damages arising from such suspension (including without limitation demobilization and remobilization expenses and increased costs of performance) and the time for ACC to complete the scope of work will be equitably extended to account for such suspension. If Customer fails to cure such default within thirty (30) days of its receipt of such notice from ACC, ACC may terminate its agreement with Customer by providing written notice to Customer and in such an event, Customer will pay ACC for all portions of the scope of work performed (in whole or in part) through the date of such termination, ACC’s demobilization expenses and other reasonable termination costs, the amount of expected overhead and profit ACC would have earned on the cancelled portions of the scope of work if not for Customer’s default, and any collection costs incurred by ACC in obtaining payment for its services and deliverables from Customer.
For a period of one (1) year from the date of acceptance, ACC warrants that all services will be performed in a workmanlike manner consistent with current and generally recognized standards in the industry. All equipment manufactured by ACC is warranted against defects in materials and workmanship under ordinary, normal and proper use and service for a period of one (1) year from the date of shipment, provided such goods are used solely for the purpose for which they were intended. All products not manufactured by ACC shall be covered and limited to the manufacturer’s warranty for such products. Warranty or failure to comply with contract claims are to be submitted, in writing, to ACC within twenty (20) days of Customer’s discovery of such obligation or non-compliance. Warranty coverage involves the repair or replacement, at ACC’s option, of the defective equipment. ACC will assume transportation charges on ACC equipment deemed to be covered under warranty. In no event will ACC be responsible for (a) any modifications to any services or deliverables made by anyone other than ACC; (b) damages caused by misuse, improper operation or improper or insufficient maintenance of any services or deliverables; (c) normal wear and tear; (d) any data loss or corruption or personal information data breach; or (e) any alleged defects in any services or deliverables that arise from ACC’s compliance with designs or other criteria or requirements provided by or through Customer. This warranty replaces any warranty implied in law, of any kind whatsoever, and all other warranties are expressly disclaimed by ACC to the fullest extent permitted by law.
10.0 INDEMNITY AGAINST CUSTOMER SAFETY LAPSES AND PRE-EXISTING CONDITIONS
To the fullest extent permitted by law, Customer shall indemnify, defend (at Customer’s sole expense) and hold harmless ACC, its subcontractors, and its consultants, and any of their partners, joint ventures, representatives, members, designees, officers, directors, shareholders, employees, agents, successors, and assigns, from and against any and all claims for bodily injury, death or damage to property, demands, damages, actions, causes of action, suits, losses, judgments, obligations and any liabilities, costs and expenses (including but not limited to investigative and repair costs, attorneys’ fees and costs, and consultants’ fees and costs) to the extent arising from Customer’s obligations to maintain the health and safety of its premises, facility, equipment, fixtures, practices and procedures, employees, agents, and independent contractors, or to the extent arising from the pre-existing or existing conditions of Customer’s premises, facility, equipment, fixtures, or practices and procedures.
11.0 INTELLECTUAL PROPERTY RIGHTS
All control systems and software programs designed by ACC shall be used solely by the Customer for the purpose and application of purchase. ACC retains all rights, title and interest in its services and deliverables, including patents and copyrights; however, upon payment of the agreed compensation to ACC, Customer will be deemed to have been granted a non-exclusive, non-transferable, royalty-free, perpetual license to use the services and deliverables for the purposes contemplated in the proposal, except that “off-the-shelf” third-party software or hardware provided through ACC will be subject to Customer’s compliance, at its own costs, with all applicable third-party licensing requirements. Customer may not sell, sublicense, assign or transfer its license to the services and deliverables provided by ACC without the prior written consent of ACC, nor may Customer reverse engineer or make derivative works from the services or deliverables without the express written consent of ACC.
12.0 EMPLOYEE PROTECTION
Customer agrees that it shall take no action to interfere with the Employer/Employee relationship between ACC and any of its employees, including, without limitation, soliciting (directly or indirectly), accepting invitations of solicitation, or hiring any said employee, during and for a one-year period after the project period. In the event of breach resulting in the departure of an ACC employee, Customer and ACC agree that, as a reasonable estimate of the damage to ACC and not a penalty, Customer shall pay liquidated damages to ACC in the amount of the solicited employee’s yearly salary.
13.0 DISPUTE RESOLUTION
In the event ACC and Customer cannot resolve any claim or dispute between them arising out of or related to the proposal or the scope of work through direct negotiations, such dispute shall be subject to arbitration in accordance with the Construction Arbitration Rules of the American Arbitration Association. Such arbitration proceedings will be held in Neptune, New Jersey before a single arbitrator. 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. The written quotation and these Terms and Conditions will be governed by the laws of the State of New Jersey and of the United States of America (including the Federal Arbitration Act, 9 U.S.C. § 1, et seq. with respect to the parties’ agreement to arbitrate any dispute arising out of or related to the proposal or the scope of work), without regard to rules governing choice or conflict of laws.
Neither Customer nor ACC may assign its respective rights and obligations under their agreement without the written consent of the other party. However, ACC may subcontract or delegate its work obligations to other persons or entities, but will nonetheless be responsible to Customer for the performance of the work as required by the proposal. Both Customer and ACC agree that there are no third-party beneficiaries to their agreement.
15.0 ACC’S STATUS
ACC is an independent contractor of Customer and will have sole charge over, and be solely responsible for, (a) the payment of its employees and subcontractors and (b) the means, methods, techniques and sequences used in the performance of the services and the creation of its deliverables. Both ACC and Customer assume that the industrial exemption applies to all services and the proposal, 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.
In no event shall ACC be liable for special, indirect or consequential damages. 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 ACC’S TOTAL AGGREGATE LIABILITY RELATED TO THE SERVICES, DELIVERABLES OR WRITTEN QUOTATION EXCEED THE AMOUNT OF COMPENSATION PAID BY CUSTOMER TO ACC UNDER THE PURCHASE ORDER. ACC shall not be liable for any representation or warranty of any kind, whether expressed or implied, except for those set forth in writing. Upon expiration of applicable warranty period, all liability shall terminate. The Terms and Conditions, stated herein, shall apply to and govern this sales agreement and any addendums thereto. Failure of strict enforcement of Terms and Conditions, by ACC, does not constitute a waiver of same. If any term of the proposal or these Terms and Conditions is found to be unenforceable, the remaining terms will remain in effect. These Terms and Conditions, along with the written quotation, constitute the entire written agreement between ACC and Customer for the products and services. These terms supersede all previous and contemporaneous agreements, proposals and representations, written or oral, concerning such matters. 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 ACC and are not a part of the agreement for the project.
2021 – Automated Control Concepts, LLC
Rev Oct 2021