Terms & Conditions of Sale
These Terms and Conditions of Sale (“Conditions”) and related Purchase Documents apply to every sale of products (“Goods”) and/or every supply of Services (“Services”) sold or provided by UE Systems Inc. (“Seller”) to the Buyer. The Buyer specifically agrees to be bound by these Conditions and acknowledges that, unless the Seller agrees in writing to a modification of these Conditions, these Conditions apply and take precedence over any of the Buyer’s own terms and conditions whether set out in the Purchase Documents or otherwise. Unless Buyer’s Purchase Documents references a written separate Agreement executed between duly authorized representatives of both Buyer and Seller, these Conditions constitute the only applicable agreement (“Agreement”) between Buyer and Seller regarding such sale of Goods and/or supply of Services. Buyer shall be deemed to have agreed to this Conditions unless notice to the contrary is received by Seller within two days from the earlier of the date of Seller’s order confirmation or invoice. An order confirmation or similar form issued by Seller pursuant to Buyer’s purchase order constitutes an expression of acceptance of Seller offer through quotation or proposal, but such expression of acceptance is expressly conditioned upon Buyer’s assent to the Conditions. ANY REPRESENTATIONS, PROMISES, WARRANTIES, OR STATEMENTS BY SELLER’S REPRESENTATIVE THAT DIFFER IN ANY WAY FROM THE CONDITIONS SHALL BE GIVEN NO FORCE OR EFFECT. Any additional, different, or conflicting terms or conditions set forth in any communications, including without limitation a request for quotation, or purchase order form transmitted orally or in written including electronic transmission or otherwise, from Buyer shall not be effective or binding unless expressly assented to with acknowledgement in writing by Seller. No other special terms or additions conditions are acceptable. Buyer further hereby agrees that Seller may correct any typographical or clerical error herein, and such correction shall become part of the Agreement without any further action on the part of Buyer.
Definitions:
“Buyer” means the company, partnership, person or entity purchasing the Goods and/or Services from the Seller identified in the Purchase Documents;
“Goods” means the product, equipment, materials or parts being purchased by the Buyer as identified in the Purchase Documents;
“Purchase Documents” means the documents accompanying these Conditions including, as applicable, the Buyer’s request for quotation/proposal, purchase orders, and with the Seller’s quotation/proposal;
“Seller” means UE Systems Inc.;
“Services” means the services of any description or kind to be provided by the Seller in relation to the Goods as more particularly identified in the Purchase Documents;
“Software” means the executable file of the computer programs, cloud based programs, and “Firmware” means the source code, to be provided by the Seller to the Buyer which is more particularly described in the Purchase Documents; and
“Conditions” means these terms and conditions, which together with the Purchase Documents, constitute the entire agreement between Buyer and Seller.
“Specification” means the Seller’s product specification or technical information provided under the reference quotation or proposal or order acknowledgement thereof specific for the Goods, including Documentation and Services identified in the Agreement, if none is identified, UE System’s standard published specification.
1. PRICES:
Unless otherwise specified by the Seller in writing, prices quoted are valid for a period of three months from the date of Seller’s quotation. The Services charged will be at the rates set out in the Seller’s published rate schedule in effect at the time the Services are actually rendered. The Seller’s prices do not include applicable taxes which will be added to the price quoted and to appear as a separate line item on the Seller’s invoice. Prices for Goods do not cover any provision for shipment, storage, installation, commissioning or training including any form of factory or site acceptances or maintenance works as required unless such items are expressly stated in the Seller’s quotation. Any future changes to applicable taxes, import tariffs, excise duty, custom charges or other fees of any nature from manufacture, sales, delivery and/or services whatsoever as may be imposed by any governmental authorities at time of shipment shall be fully chargeable to the Buyer. Buyer shall supply in advance exemption certificate or other document deem acceptable to the governmental authority if the Buyer claims any exception.
2. DELIVERY TO TRANSFER OF TITLE AND RISK:
All shipping dates for the Goods and performance dates for the Services are approximate only and are based on Seller having received from the Buyer all information required by the Seller to provide the Goods and/or Services. The Buyer agrees to accept shipment when Goods are ready to ship, or storage charges may apply. Unless otherwise specifically agreed in the Purchase Order, the Goods are delivered and the risk of loss or damage shall pass to the Buyer upon collection of the Goods by the first carrier from Seller’s premises. Delivery of Goods by Seller will be deemed to be made to the Buyer upon obtaining a signed receipt from the carrier showing receipt of the Goods. Title passes only upon Seller receiving full payment. Seller reserves the right to make shipments in instalments, unless otherwise expressly stipulated in a specific Purchase Document; and all such instalments when separately invoiced shall be paid for when due per invoice without regard to subsequent shipments. Delay in shipment of any installment shall not relieve Buyer of its obligation to accept remaining shipments. Claims for shipment shortages or errors must be submitted to Seller within 30 calendar days after invoice date, and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by the Buyer. Any storage costs beyond reasonable ready to be shipped date to be charged to Buyer.
3. DOCUMENTATION:
The Seller shall supply the Buyer with the documentation as specified in the Seller’s quotation. Any additional copies of the documentation or the supply of the documentation on alternative media will be provided by the Seller to the Buyer at the Seller’s price then in effect.
Buyer further hereby agrees that Seller may correct any typographical or clerical errors within Seller’s documentation, and such correction shall become part of the documentation.
4. EXCUSE OF PERFORMANCE DUE TO FORCE MAJEURE:
Seller shall not be liable for force majeure delays in performance or for non-performance, among other things, due typically or attributed as acts of God, war, riot, fire, labour issues, unavailability of materials or components, explosion, accident, compliance with governmental requests, laws, regulations, orders or actions, or other unforeseen circumstances or causes that are beyond Seller’s reasonable control. Any delay resulting from any such cause shall extend the date of delivery and the price of the Goods and/or Services to be provided by the Seller may be revised by agreement made between the Buyer and Seller or the Buyer or Seller may at its option cancel the sale of the Goods or agreement to provide Services in which case the Buyer shall pay the Seller final invoice reflecting the total of outstanding amounts for work in progress to date of cancellation, balance of completed works including any restocking fees, and other costs or expenses incurred by Seller arising from such a cancellation.
5. CHANGES, TERMINATION AND SUSPENSION BY BUYER:
Buyer may terminate or suspend its order for any or all of the Goods/Services covered by these Conditions, provided that Buyer gives Seller reasonable advance written notice of such termination or suspension and reimburses Seller for all losses, damages, costs and expenses arising from such termination or suspension. The Seller shall have the right, in addition to any other remedy, to either terminate its agreement to sell the Goods or provide the Services or suspend further deliveries of the Goods or provision of the Services to the Buyer in the event Buyer fails to make any payment required to be made to the Seller when due.
6. STANDARD WARRANTY:
Subject to the limitations of liability and remedies set out in Section 7, the Seller warrants its Product(s) and/or Services as follows:
- Goods manufactured by Seller under its own brands and supplied by Seller as part of the Purchase Documents, if any, against defects in material and workmanship of those Goods arising under normal use for a period of 12 months from the date of initial installation or 18 months from the date of shipment from Seller, whichever occurs first. Consumables components are warranted for a period of 90 days from the date of shipment by the Seller. Any resale product(s) manufactured by any third party provided by the Seller to the Buyer shall be subject to the original manufacturer’s standard warranty and no warranty for same is provided hereunder by Seller to Buyer. The Buyer agrees that the Seller shall have no liability for correcting any defect in the third-party manufactured materials and workmanship and that the Seller’s only obligation is to make a reasonable commercial effort to assist the Buyer in making a warranty claim as against the original manufacturer’s standard warranty. Consumables mean the stock of operating supplies or considered wear and tear parts to be used with the standard operation and maintenance of the Goods where such shall not constitute a defect under the definition of warranties.
- Services performed by Seller’s personnel including on component integration, device configuration and the repair of products are warranted against defects in workmanship for a period of the earlier than 90 calendar days from the date of Services rendered or 120 calendar days from the date of delivery of the product(s) to the Buyer.
Software: (a) The Seller does not warrant that any software provided by it in connection with the Product(s) and/or Services will be free from defects or that the software will run without interruption; (b) The only warranty provided for software or any upgrades to any software not developed by the Seller is the warranty provided by the original supplier of the software. The Buyer agrees that the Seller has no liability for the repair or correction of any defect in any such software and that the Seller’s only obligation is to make a reasonable commercial effort to arrange for the supplier of the software to make corrections to the program of any defect in it; (c) Any software developed by the Seller, including any original software applications based upon the source code provided by others, and any upgrades to such software, is not warranted.
On-Site Support: If the Buyer requires the Seller to provide any Services relating to any defect in the Product(s) and/or Services provided for non-warranty claims, including diagnosis, dismantling and reinstallation of Product(s), at the Buyer’s site, all costs of travel to and from the Buyer’s site and of these Services shall be paid by the Buyer at the rates set out in the Seller’s published rate schedule in effect at the time the Services are actually rendered.
WARRANTY EXCLUSIONS: (a) The Seller does not warrant the performance of any Product(s) and/or Services provided by it to the extent that the actual operating or other conditions differ from the specifications, information, representation of operating conditions or other data supplied by the Buyer (collectively, “Buyer Specifications”) for the purpose of the selection or design of the Product(s) and/or Services to be provided by the Seller. Seller relies on the Buyer Specifications; (b) This limited warranty shall not apply to any repair or replacement of Product(s) caused by abuse, accidental damage, misuse, improper installation, and improper application, corrosion or inadequate or improper preventative maintenance of the Product(s); (c) The Seller does not warrant the performance of any Software or Goods controlled by the Software provided by the Seller unless the Buyer attends a site acceptance test and completes the site acceptance test documentation when the Purchase Documents require a site acceptance test of the Software and Goods; EXCEPT AS EXPRESSLY PROVIDED HEREIN, THERE ARE NO OTHER REPRESENTATIONS OR WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, MADE BY SELLER AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR ANY OTHER MATTER WITH RESPECT TO ANY OF THE GOODS OR SERVICES AND ALL IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES OR CONDITIONS ARE EXPRESSLY DISCLAIMED BY SELLER.
7. LIMITATION OF REMEDY AND LIABILITY:
Seller shall not be liable for damages caused by delay in performance. The sole and exclusive remedy for breach of warranty hereunder shall be limited to the term of original sale to repair, correction, replacement or refund of purchase price under the Limited Warranty Clause in Section 6. In no event, regardless of the form of the claim or cause of action (whether based in contract, infringement, negligence, strict liability, other tort or otherwise), shall Seller’s liability to Buyer and/or its customers exceed the price to Buyer of the specific Goods manufactured or Services provided by the Seller giving rise to the claim or cause of action. Buyer agrees that in no event shall Seller’s liability to Buyer and/or its customers extend to include indirect special, incidental, consequential or punitive damages. The term “consequential damages” from non-delivery or through defects in materials or workmanship or from any other causes whatsoever shall include, but not be limited to loss of anticipated profits, loss of use, loss of data, loss of production, loss of revenue and cost of capital.
8. INDEMNITY:
The Seller agrees to protect, defend, indemnify and hold harmless the Buyer, its respective shareholders, officers, directors, employees and consultants from and against any and all claims, demands, losses, causes of action, liability and costs (including all legal costs and attorney fees) of every kind and nature arising out of or connected in any way with (a) Buyer’s performance and/or breach hereunder, (b) damage to property, personal injury or death of the Buyer’s employees, or (c) claims of any third parties alleged to have been caused by any act or omission of the Seller connected with the Product(s) and/or Services provided by the Seller. The same reverse indemnity shall apply from Buyer to Seller.
9. INTELLECTUAL PROPERTY MATTERS:
Nothing in these Conditions constitutes a transfer or conveyance of any right, title or interest in such intellectual property, including without limitation to any software or firmware contained in those, except the limited right to use it as provided hereunder and/or in the Purchase Documents. Seller will not be responsible for any compromise or settlement made without its written consent. In no event, shall Seller be liable if any infringement claim is based on the use of Seller’s Goods for a purpose other than that for which it was sold by Seller. As to any Goods or Services furnished by Seller to Buyer and manufactured or provided in accordance with designs proposed by Buyer, the Buyer shall indemnify Seller against any award made against Seller for any patent, trademark, copyright or other intellectual property rights’ infringements.
10. INSTALLATION:
Buyer shall be responsible, at its sole expense, for receiving, storing, installing, starting up and maintaining all Goods. Seller shall provide a quotation for Services to assist Buyer in these functions if requested.
11. EXPORTS/IMPORTS:
The Buyer acknowledges and warrants that it (a) will adhere to and comply with all applicable domestic and foreign export control laws, regulations orders and requirements (the “Export Control Laws”), and (b) will not, directly or indirectly, as agent, consultant, customer, end-user, freight forwarder or otherwise directly or indirectly through a third party (i) ship the Goods to any country subject to trade embargoes in violation of any Export Control Laws or (ii) apply, sell, export, re-export, divert or otherwise transfer the Goods in support of a prohibited end-use.
12. TERMS OF PAYMENT:
Subject to approval of the Seller’s credit department, the Buyer shall pay the Seller the price of the Goods and/or Services provided within thirty (30) calendar days from the date of the Seller’s invoice. All overdue payments may be subject to additional fees.
13. SOFTWARE AND FIRMWARE:
Notwithstanding any other provision herein to the contrary, Seller or applicable third-party owner shall retain all rights of ownership and title in its respective firmware and software, including all copyrights relating to such firmware and software and all copies of such firmware and software and its documentation. Except as otherwise expressly provided herein, Buyer is hereby granted a limited, nonexclusive, non-assignable, non-transferable, royalty free license to use firmware and software, and copies of firmware and software and its documentation, incorporated into the Goods only in conjunction with such Goods and only at the Buyer’s specific plant site where the Goods are first used. Buyer may negotiate purchase from with Seller separate licenses to use such copies and firmware and software at other plant sites. Buyer’s use of certain firmware (as specified by Seller) and all other software shall be governed exclusively by Seller’s and/or third-party owner’s applicable license terms. Any software or computer information, in whatever form that is provided with Goods manufactured by Seller or as part of Services, is licensed to Buyer solely pursuant to standard licenses of Seller or its supplier of such software or computer information which licenses are hereby incorporated by reference as applicable. Subject to and in addition to Section 6 above, Seller does not warrant that such software or computer information will operate error free or without interruption and warrants only that during the warranty period applicable to the Goods that the software will perform its essential functions. If such software or computer information fails to conform to such warranty, Seller will, at its option and as Buyer’s sole remedy, provide an update to correct the non-conformance or replace the software or computer information with the latest available version containing a correction. Seller shall have no other obligation to provide updates or revisions.
14. BUYER SUPPLIED DATA:
To the extent that Seller has relied upon any Buyer Specifications or other data or information supplied by Buyer to Seller in the selection or design of the Goods and/or provision of the Services and the preparation of Seller’s quotation, and in the event that actual operating conditions or other conditions differ from those represented by Buyer and relied upon by Seller, any warranties or other provisions contained herein which are affected by such conditions shall be null and void, unless otherwise mutually agreed upon in writing.
15. NON-DISCLOSURE:
The Buyer agrees that it shall not disclose or otherwise make available to third parties any particulars relating to any information which the Seller has a proprietary interest in including, but not limited to its product, software, firmware, specifications, drawings and data, without receiving written permission from the Seller.
16. GENERAL PROVISIONS:
(a) Buyer shall not assign its rights or obligations under these Conditions without Seller’s prior written consent. (b) There are no understandings, agreements or representations, express or implied, not specified in these Conditions. (c) No action, regardless of form, arising out of transactions under these Conditions, may be brought by either party more than two (2) years after the cause of action has accrued. (d) The agreement formed under these Conditions shall be construed, performed and enforced under the laws of the State of New York including references to the federal laws of the US without regard to its conflicts of laws interpretations thereof. Buyer agrees that all Goods and Services require proper compliance with import and export laws and where applicable on administrative requirements including the collection payment of all associated duties, taxes and fees to authorities by Seller.
17. INSURANCE:
Seller shall obtain and maintain all appropriate insurance coverage (including, without limitation, commercial general liability, worker’s compensation, auto, errors and omissions, professional liability insurance) and for such amounts in accordance with Seller’s industry practice. Certificate of insurance evidencing this may be provided on request.
18. HEALTH AND SAFETY, DESIGNATED SUBSTANCES FREE ON BUYER’S SITE
Seller employees shall not perform Services on Buyer’s site that, in their opinion, is not free of reasonably foreseeable health, safety and Designated substances harm. This includes working on any equipment, whether provided by Seller, Buyer or otherwise, that in the Seller’s or such Seller employees’ sole opinion has not been placed in a safe working condition. Buyer warrants that site and working conditions shall meet or exceed those specified by applicable Occupational Health and Safety Act and Regulations including ensuring Designated substances free work environment. Buyer shall inform Seller of: (a) known hazards, or reasonably foreseeable hazards, that are related to Seller’s scope of Services and the site where the Services will be performed; and (b) information about the worksite necessary to identify hazards and assess risk for the protection of the health and safety of Seller personnel. This information might include, but is not limited to: (i) providing an accurate up-to-date drawings, process data and specification information, (ii) providing relevant Workplace Hazardous Materials Information System (WHMIS) information such as Material Safety Data Sheets (MSDS) and floor plans indicating areas where hazardous materials are located and emergency exits for service rooms and other areas of operation; and (iii) other site specific information relative to the Buyer’s operation, process and safety systems. Any hazardous materials requiring remediation in Seller’s sole opinion will be separately chargeable to Buyer and will be a condition precedent to Buyer’s continued performance of such Services. Seller will not be liable for any costs, fees, charges or expenses incurred to identify or safely remove any Designated substances deem necessary on Buyer’s site.
19. ACCESS TO BUYER SITE
Buyer to ensure site access will be free and unrestricted to enable Seller to perform the Services. Any waiting or delay time due to others, and/or any site-specific requirements for safety training or whatsoever beyond Seller’s control will be billable per published rates. Any cancellation of scheduled Services received less than 7 days will be charged the same minimum billing rates plus any other travel and expenses charges due to the Buyer’s requested changes. Buyer shall appoint a representative familiar with the site conditions and nature of the Services to be performed by the Seller to be present at all times including providing all necessary assistance while Seller personnel are at the site. Seller shall not be liable for any expenses incurred by Buyer in removing, replacing or refurbishing any Buyer equipment or any part of the building structure that may restrict Seller access. Seller shall not be liable or responsible for any site work performed by Buyer.
20. RETURN POLICY
Returned equipment may be accepted for return by UE Systems Inc. if the equipment is new, unused, undamaged, in the original shipping container(s), and within six months of original purchase date. All returned equipment is subject to a restocking fee to be determined at the time of request. Shipping charges for the return shall be paid by the customer and sent to UE Systems Inc. UE Systems Inc. will retain delivery premiums associated with the original shipment of the returned equipment. Upon receipt and inspection of the equipment, the condition of material is subject to determination by UE Systems Inc. Quality Assurance department. UE Systems Inc. reserves the right to deny credit for any authorized returns that upon inspection are deemed not to meet the criteria set out above. UE Systems Inc. reserves the right to refuse the return of equipment if the equipment is non-standard, of special material, built-to-order, or not returnable to the original manufacturer. Return Material Authorizations are valid for one months from issue date, after which time Return Material Authorizations that have not been received will be cancelled, and associated equipment will be refused if received at UE Systems.
21. CHANGE ORDER AND CANCELLATION POLICY
Change Orders and/or Cancellations issued by the Customer after contract placement with UE Systems Inc. will be subject to fees to be determined at the time of the change and/or cancellation request. Changes include but are not limited to changes to Documentation, Tagging, Calibration Range(s), Model Number(s), Quantity, Materials of Construction, and Orientation. Cancellations are defined as each reduction in quantity of model(s) and part number(s) per line item ordered. In the event of a Credit Hold, UE Systems Inc. reserves the right to apply cancellation fees; if equipment has been built and ready for shipment for 120 days beyond the original requested ship date, and the credit hold has not been resolved by the Customer, UE Systems Inc. reserves the right to cancel the Customer’s order and apply all associated cancellation fees to the Customer’s account.
1. INTRODUCTION:
These general terms and conditions (along with any directly associated, written UE Systems Inc. specification, Proposal, or quotation; collectively a “Contract”) exclusively will govern all services furnished by UE Systems Inc. or its affiliates (“UES”) (including, without limitation, UES’s provision of sensors, machine health monitoring, and related maintenance of sensors (collectively the “Services”) pursuant to UES’s OnTrak Wireless service. UES’s acceptance of any offer by Customer to purchase or utilize the Services is expressly conditioned upon Customer’s assent to all the terms and conditions herein, including any terms additional to or different from those contained in any related agreement or other offer to purchase issued by Customer. UES hereby objects to any different or additional terms and conditions contained in any acceptance by Customer of any offer or proposal made by UES or in any other document submitted by Customer, including any terms stated on Customer’s purchase order, order form, Customer Terms and Conditions, or related agreement. No modification, addition, deletion, rescission, or waiver by UES of any term or condition set forth herein or of any of UES’s rights or remedies hereunder shall be binding upon UES unless agreed to in a writing signed by an authorized representative of UES.
2. PROPOSAL:
Prior to the commencement of Services, the Parties shall submit one or more Proposals for each Customer site, specifically referencing this Contract, that shall set forth the fees for the services and equipment. Customer may make a written request for changes in the Services provided, but acceptance of any requested change shall be at UES’s sole discretion and shall be upon such terms and conditions as UES shall require. No requested change shall be binding upon UES unless accepted by UES in writing.
3. SERVICES:
UES’s Services may include: (a) providing Customer with sensors, gateways, and hardware as specified and agreed to in a Proposal and installing such sensors on Customer’s in-scope equipment for the purpose of automated data collection for in scope equipment; (b) providing necessary maintenance on sensors (in cases where inoperability is due to Customer issues, Customer may be charged on a time and material basis for such maintenance or repair); (c) monitoring sensors and hardware by way of a technology platform that will alert Customer when specified parameters are exceeded (d) escalating to Customer when failure thresholds are exceeded; (e) providing Customer with access to performance dashboards for the hardware specified in an applicable Proposal; and (f) providing Customers with asset health reports with UES insights and recommendations.
Customer acknowledges and agrees that: a) UES does not guarantee that the OnTrak Wireless service or the insights derived from it will be entirely free from errors or vulnerabilities. b) All insights and recommendations provided by the service should be independently validated by trained professionals. c) The OnTrak Wireless service is designed to support and assist the Customer in their operations, but ultimate decision-making responsibility lies with the Customer. UES shall not be held accountable for decisions made based on the service or the results of those decisions, nor for any potential oversights or undetected faults.
4. CUSTOMER RESPONSIBILITIES:
Customer will be responsible for: (a) providing access to Customer’s facility to install, maintain, and remove sensor hardware specified in a Proposal; (b) replacement costs (hardware and installation costs) associated with hardware damage that occurs in connection with the Services, normal wear and tear excluded; (c) providing UES installation and maintenance employees with a safe work site, maintaining a legally compliant safety program appropriate to the site, and providing information and training to UES installation and maintenance employees on Customer’s safety program and site safety requirements; and (d) allowing UES to mount, install, maintain, remove, and communicate with hardware installed at Customer’s facility using cellular or Bluetooth transmission. UES will not undertake any modifications to existing structures, provide any electrical work, or make any networking changes as part of the installation. Any such modifications, electrical work, or networking changes required for the effective operation of the equipment will be the responsibility of the Customer or should be arranged separately with third-party providers.
5. PRICE; TAXES; PAYMENT TERMS:
All prices quoted are subject to change upon subscription renewal, at any time prior to UES’s acceptance of Customer’s order, or execution of an applicable Proposal. Customer shall pay UES the amounts specified in the applicable Proposal, subject to any price increases contained in said Proposal. The Parties agree that all amounts due by the Customer to UES for the Services are exclusive of any and all taxes and duties, however designated or levied, including, without limitation, any personal property, retail sales, goods and services, use or value added taxes in force now or in the future. Any such taxes shall be the sole responsibility of Customer. Purchase order(s) shall be issued to UES by Customer for fees set out in any Proposal and as mutually agreed upon by the Parties. Unless otherwise specified, UES shall invoice Customer annually for Services provided under the applicable Proposal. Applicable taxes owed by Customer will be stated separately on each invoice. All invoices are due and payable within thirty (30) days of the receipt of the invoice. Invoices unpaid by Customer within thirty (30) days may incur late fees. The provision of any services or resources outside the scope of those specified in the applicable Proposal shall be billed to Customer at the then-current UES rates for such services. Any services to be provided outside the scope of the applicable Proposal shall be documented and agreed to in writing by the Parties.
6. WARRANTY AND REMEDIES:
UES warrants that all services provided hereunder or pursuant to a Proposal hereunder will be performed in accordance with generally accepted industry practices by a trained staff capable of rendering the services. UES does not warrant that Customer’s equipment will be free of down time or other malfunctions; nor does UES warrant that all malfunctions can or will be identified or predicted in advance or prevented. UES warrants sensors it provides and installs for the duration of the applicable Proposal; however, Customer is fully responsible for ensuring gateway/non-interference with Bluetooth/cellular signal. Satisfaction of the above warranty will be limited, at UES’ option, to the reperformance of any unsatisfactory services, replacement of any faulty sensors, or issuance of a credit for the purchase price of the services involved. Warranty satisfaction is available only if UES’ examination discloses, to its reasonable satisfaction, that any alleged defect has not been caused by misuse; neglect; alteration or modification; accident; or unusual deterioration or degradation of the parts thereof due to physical environment or electrical or electromagnetic noise environment. Any technical advice furnished or recommendation made by UES or any employee or representative of UES concerning the Services furnished hereunder is believed to be reliable; but UES makes no warranty, express or implied, of results to be obtained. Customer assumes all responsibility for loss or damage resulting from the application of such technical advice. Customer specifically waives and releases UES from any and all damages, liabilities, claims, costs, and expenses that may arise based on malfunction or failure of any sensors or enabling software, or failure of UES to predict or prevent any malfunctions, breakdown, or damage through the use of sensors and sensor technology except to the extent resulting from UES’ gross negligence or intentional misconduct.
THE ABOVE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES WHETHER EXPRESSED, IMPLIED, OR STATUTORY. ALL IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR PARTICULAR USE, OR PERFORMANCE OR APPLICATION WARRANTIES ARE SPECIFICALLY DISCLAIMED. ANY WARRANTIES PROVIDED UNDER THIS CONTRACT ARE AVAILABLE ONLY TO THE CUSTOMER AND DO NOT EXTEND TO ANY THIRD PARTY.
7. INDEMNITY:
Customer agrees to indemnify, defend, and hold UES, its subsidiaries, affiliates, directors, officers, employees, and agents harmless from and against all claims, demands, liabilities, loss, damage, cost, and expense of whuesoever nature, including attorney’s fees, arising from, resulting from, or in any way connected with Customer or Customer’s agent’s negligence, gross negligence, willful misconduct, or violation of any law or regulation.
8. LIMITS OF LIABILITY:
In no event will UES be liable for incidental, indirect or consequential damages of any kind, whether or not foreseeable. UES’ maximum cumulative liability relative to all claims and liabilities, including that with respect to direct damages and obligations under any indemnity, whether or not insured, will not exceed the fees paid by Customer to UES over the previous twelve (12) month period under the applicable Proposal. These disclaimers and limitations of liability will apply regardless of any other contrary provision of these Terms and Conditions or related agreement between the Parties and regardless of the form of action, whether in contract, tort or otherwise, and further will extend to the benefit of UES’ vendors, appointed distributors and other authorized resellers as third-party beneficiaries. Each provision in this Contract, any Proposal, or other related agreement between the Parties which provides for a limitation of liability, disclaimer of warranty or condition, or exclusion of damages is severable and independent of any other provision and is to be enforced as such.
9. CONFIDENTIALITY:
All drawings, diagrams, data, specifications, and other materials furnished by either Party, all processes applied by either Party, and all other information disclosed by either Party in the course of bidding, negotiating, or performing under this Contract, any Proposal, or any related agreements between the Parties are proprietary to either Party and are confidential in nature. Such materials, processes, applications, and other information relating to either Party have been developed at great expense and constitute trade secrets of either Party. Neither Party shall directly or indirectly, use, publish, divulge, communicate, disclose, copy, or make excerpts from any such materials or information without the others’ prior express written consent. All such materials or other information supplied by either Party shall be received in confidence, and both Parties shall exercise reasonable care to hold such information in confidence. The obligations of both Parties under this paragraph shall survive the termination of the Services, however caused. Upon request, on termination of the Services for any reason, both Parties shall promptly return to each other all physical and written material (and all copies thereof) containing confidential information of the other Party. UES retains all rights in any inventions, improvements, processes, applications, discoveries, or patents it conceives relating to the products or Services delivered hereunder.
10. USES OF SENSOR DATA FROM CUSTOMER EQUIPMENT:
At all times, both during and after the period where UES is providing Services to Customer, UES shall retain the full, unlimited right to utilize Customer equipment sensor data in an anonymized, non-attributable fashion. Customer sensor data may be aggregated and co-mingled with sensor data collected from other of UES’s customer’s equipment, and such sensor data may be used to validate and improve UES maintenance processes and methodologies across UES’ customer base, in furtherance of UES products and services, and to determine industry best practices concerning predictive and preventive maintenance.
11. TERMINATION
| Effective Date of Cancellation | Credit or Cancellation Fee |
| Occurs greater than 6 months before annual renewal date | 3 months of contract fees credited per each canceled sensor |
| Occurs less than 6 months before annual renewal date | No credit or fee applies |
| Opt out of annual renewal less than 30 days before renewal date | 3 months of contract fees owed per each canceled sensor |
In the event of the termination of any OnTrak Wireless agreement, or Proposal for any reason, Customer shall pay UES for all Services provided up to the effective date of termination at the rates specified in the applicable Proposals or agreement, as well as for all work-in-process on a time and materials basis at the then current standard UES rates for similar services. Either Party may terminate a Proposal thereto with or without cause by giving thirty (30) days prior written notice. Either Party may opt out of the Annual Renewal, greater than thirty (30) days before the renewal date without incurring a penalty. A Cancellation Fee will not be applicable for termination or cancellation during any free trial period, but thereafter will be applicable in the event of cancellation or reduction in number of sensors according to the table below. Any applicable Cancellation Fee shall become due and owing within fifteen (15) days of termination or cancellation.
12. RETURN OF SENSORS AND RISK OF LOSS:
All sensors installed by UES on Customer equipment at a particular Customer Site shall remain the property of UES and must be removed by Customer and returned to UES at Customer expense within five (5) business days following the expiration, termination, or cancellation of the applicable Services. Customer shall return sensors to UES in the condition in which the sensors were installed by UES, normal wear and tear excepted. Customer shall be liable to UES for any damage to sensors in the removal or return processes. Risk of loss of sensors and related items shipped back to UES by common carrier shall remain with Customer until the sensors and related items are received by UES. Transportation shall be at Customer’s sole risk and expense.
13. SUSPENSION OF SERVICES:
In addition to the termination rights set forth above and without limiting any other rights, recourses or remedies which UES may have under these Terms and Conditions, a Proposal, or at law or in equity, UES may, by written notice, suspend work under any Proposal of the date specified in such notice upon the occurrence of either of the following events: (a) Customer’s failure to pay UES any amount required to be paid under any Proposal within thirty (30) days of the original due date; or (b) filing by or against Customer of a petition or a resolution made or passed by Customer for the bankruptcy, winding-up, liquidation or dissolution of Customer of the appointment of a receiver or trustee in respect of Customer or of its assets or the acknowledgment by Customer of its inability to meet its debts as they fall due or a general assignment of the assets of Customer in favor of its creditors or Customer ceasing to do business as a going concern.
14. FORCE MAJEURE:
Neither Party assumes the risk of and shall not be liable for failure to perform any obligation relating to this Contract or any Proposal executed by the Parties caused by civil insurrection; war; fire; strike, acts of God; acts or omissions of the United States Government or any state or local government; floods; epidemics; freight embargoes; shortages of fuel, energy, the establishment of any priority or allocation system by the United States Government or any of its agencies; or any other cause beyond the control of such Party.
15. INDEPENDENT CONTRACTOR:
Nothing herein contained shall be deemed to create an agency, joint venture, partnership, or fiduciary relationship between the Parties. UES and its employees shall at all times be considered an INDEPENDENT CONTRACTOR to Customer.
16. ASSIGNMENT:
Customer shall not assign its rights or obligations under this Contract or any Proposal without UES’s prior written consent.
17. COMPLIANCE WITH LAWS:
Both UES and Customer shall comply with all applicable laws and regulations of local, state, or federal governments.
18. INTELLECTUAL PROPERTY:
UES retains all ownership and intellectual property rights in and to the Services provided hereunder, derivative works thereof, all sensor data analytics and algorithms, and anything developed or delivered by or on behalf of UES while performing the Services or in connection with this Contract, any Proposal(s), or any related agreement between the Parties.
19. WAIVER:
Any waiver by either Party of any term, provision, or condition of this Contract or a Proposal shall not be construed or deemed to be a waiver of any other term, provision, or condition of this Contract or such Proposal, nor a waiver of a subsequent breach of the same or different term, provision, or condition, unless the waiver is in writing and is signed by the other Party.
20. GOVERNING LAW:
The validity, interpretation, and performance of these Terms and Conditions or Proposal and all related agreements entered into by the Parties hereto shall be governed and construed in accordance with the laws of the State of New York.
21. SEVERABILITY:
If any section, subsection, sentence, paragraph, or clause of this Contract shall be adjudged illegal, invalid, or unenforceable, such illegality, invalidity, or unenforceability shall not affect the legality, validity, or enforceability of these Terms and Conditions as a whole, or of any section, subsection, sentence, paragraph, or clause hereof not so adjudged. Any provision adjudged illegal, invalid, or unenforceable shall be modified to the extent required to conform with the law consistent with its original intent if possible, or otherwise shall be deleted.
TERMS OF USE AND LIABILITY ACKNOWLEDGEMENT
By clicking “I Accept,” accessing, or using UE ONE Analyzer, UE ONE Copilot, or any related analysis, output, recommendation, alert, report, summary, explanation, or suggested action, I acknowledge and agree to the following terms.
1. DECISION-SUPPORT USE ONLY
UE ONE Analyzer and UE ONE Copilot are decision-support tools. They are intended to assist qualified users in reviewing, organizing, analyzing, and interpreting machine-condition data, including ultrasound, vibration, temperature, lubrication, asset, route, and related reliability data.
UE ONE Analyzer and UE ONE Copilot do not replace qualified human judgment, site maintenance procedures, OEM instructions, safety programs, regulatory obligations, or professional engineering review.
Any output, recommendation, alert, explanation, or analysis provided by UE ONE Analyzer or UE ONE Copilot is for informational and decision-support purposes only. It is not a guarantee of machine condition, fault diagnosis, asset health, remaining useful life, lubrication requirement, safety status, production risk, or required corrective action.
2. HUMAN REVIEW REQUIRED
I understand and agree that all outputs and recommendations from UE ONE Analyzer and UE ONE Copilot must be independently reviewed and validated by qualified personnel before any maintenance, lubrication, shutdown, inspection, repair, operational, safety, or production decision is made.
I agree not to rely solely on UE ONE Analyzer, UE ONE Copilot, or any Copilot recommendation for decisions involving machine safety, personnel safety, equipment operation, production shutdowns, lubrication actions, maintenance scheduling, regulatory compliance, asset replacement, emergency response, or any action that may result in equipment damage, downtime, financial loss, injury, or unsafe operating conditions.
3. AI AND AUTOMATED OUTPUT LIMITATIONS
I understand that UE ONE Copilot may use artificial intelligence, automation, algorithms, machine learning, rules-based logic, statistical analysis, historical data, user-provided data, and other technology to generate summaries, explanations, insights, and recommendations.
I acknowledge that AI-generated or automated outputs may be inaccurate, incomplete, outdated, misleading, inconsistent, or unsuitable for the specific machine, operating condition, environment, or application being reviewed.
UE ONE Copilot may misinterpret data, omit relevant context, provide an incorrect recommendation, fail to identify a machine issue, overstate or understate the severity of a condition, rely on incomplete or incorrect input data, or generate outputs that require further technical validation.
I am responsible for independently verifying all Copilot outputs before taking action.
4. USER RESPONSIBILITY FOR DATA AND SETUP
I am responsible for the accuracy, completeness, quality, configuration, and context of all data provided to, uploaded into, captured by, or analyzed through UE ONE Analyzer or UE ONE Copilot.
This includes, but is not limited to, asset information, bearing information, speed or RPM information, sensor placement, ultrasound sensitivity settings, route setup, baseline selection, threshold values, machine operating state, load condition, environmental conditions, lubrication history, maintenance history, vibration data, temperature data, user-entered notes, uploaded files, historical trend data, and any assumptions provided to the system.
I understand that incorrect, incomplete, outdated, or missing information may result in incorrect analysis, incorrect recommendations, missed issues, or inappropriate suggested actions.
5. USER RESPONSIBILITY FOR MAINTENANCE, SAFETY, AND OPERATIONAL DECISIONS
I remain solely responsible for my equipment, maintenance program, lubrication program, reliability program, safety program, operating procedures, and compliance obligations.
UE Systems is not responsible for determining whether a machine is safe to operate, whether a machine should be shut down, whether a machine should be lubricated, whether a component should be replaced, whether a maintenance action should be performed, or whether a production decision should be made.
I agree to follow all applicable site procedures, OEM recommendations, lockout/tagout procedures, safety rules, regulatory requirements, and professional standards.
6. NO SAFETY-CRITICAL OR SOLE-MONITORING USE
UE ONE Analyzer and UE ONE Copilot are not designed or intended to be the sole system for emergency detection, personnel safety, automatic shutdown, hazardous condition detection, process control, or safety-critical monitoring.
I agree not to use UE ONE Analyzer or UE ONE Copilot as the only basis for any decision where failure, delay, error, or missed detection could result in injury, death, environmental harm, equipment damage, production loss, or regulatory violation.
For critical assets or critical machine conditions, I agree to use appropriate independent controls, inspections, alarms, operating procedures, qualified review, and site-approved decision-making processes.
7. NO PROFESSIONAL ENGINEERING, SAFETY, OR LEGAL ADVICE
UE ONE Analyzer and UE ONE Copilot do not provide professional engineering certification, safety certification, legal advice, regulatory advice, or OEM-authorized maintenance instructions.
Any recommendations, explanations, or suggested actions generated by UE ONE Analyzer or UE ONE Copilot must be treated as technical assistance only and must be reviewed by qualified personnel before implementation.
8. DISCLAIMER OF WARRANTIES
To the maximum extent permitted by applicable law, UE ONE Analyzer, UE ONE Copilot, and all related outputs, recommendations, reports, alerts, explanations, and analysis are provided “as is” and “as available.”
UE Systems makes no warranty that UE ONE Analyzer, UE ONE Copilot, or any related output will be accurate, complete, uninterrupted, error-free, reliable, suitable for a particular purpose, or capable of identifying every machine condition, fault, defect, lubrication issue, or operational risk.
UE Systems does not warrant or guarantee that use of UE ONE Analyzer or UE ONE Copilot will prevent machine failure, reduce downtime, avoid production loss, improve safety, identify all faults, extend asset life, or produce any specific operational or financial outcome.
To the maximum extent permitted by applicable law, UE Systems disclaims all express, implied, statutory, and other warranties, including warranties of merchantability, fitness for a particular purpose, non-infringement, accuracy, completeness, reliability, availability, performance, and suitability for a particular machine, site, application, or safety-critical use.
9. LIMITATION OF LIABILITY
To the maximum extent permitted by applicable law, UE Systems, its affiliates, officers, directors, employees, agents, suppliers, licensors, and service providers shall not be liable for any indirect, incidental, consequential, special, exemplary, punitive, or enhanced damages, including but not limited to lost profits, lost revenue, lost production, machine downtime, business interruption, loss of use, loss of data, equipment damage, cost of replacement equipment, cost of substitute services, maintenance costs, repair costs, inspection costs, failed lubrication decisions, missed fault detection, incorrect diagnosis, incorrect recommendation, delayed action, or losses arising from reliance on UE ONE Analyzer or UE ONE Copilot outputs.
This limitation applies whether the claim is based on contract, tort, negligence, strict liability, product liability, warranty, misrepresentation, or any other legal theory, even if UE Systems has been advised of the possibility of such damages.
To the maximum extent permitted by applicable law, UE Systems’ total liability arising out of or relating to UE ONE Analyzer, UE ONE Copilot, or any related output shall not exceed the fees paid by the customer for the affected service during the twelve months preceding the event giving rise to the claim.
Nothing in these terms excludes or limits liability to the extent such liability cannot be excluded or limited under applicable law.
10. ASSUMPTION OF RISK AND RELEASE
I acknowledge that analyzing machine-condition data involves technical uncertainty, incomplete information, changing operating conditions, and professional judgment.
I voluntarily assume all risks associated with my use of UE ONE Analyzer, UE ONE Copilot, and any outputs or recommendations generated by these tools.
To the maximum extent permitted by applicable law, I release UE Systems from claims, damages, losses, liabilities, costs, and expenses arising from or related to my reliance on outputs or recommendations, my failure to independently verify outputs, incomplete or inaccurate data, user error, improper setup, improper sensor placement, incorrect machine information, incorrect RPM or bearing data, incorrect baseline or threshold configuration, failure to follow site procedures, failure to follow OEM instructions, or actions taken or not taken based on UE ONE Analyzer or UE ONE Copilot outputs.
11. INDEMNIFICATION
I agree to defend, indemnify, and hold harmless UE Systems, its affiliates, officers, directors, employees, agents, suppliers, licensors, and service providers from and against any claims, damages, losses, liabilities, costs, and expenses, including reasonable legal fees, arising out of or related to my use of UE ONE Analyzer or UE ONE Copilot, my reliance on outputs or recommendations, my maintenance, lubrication, safety, production, or operational decisions, my data or inputs, my failure to validate outputs, my violation of these terms, my violation of applicable laws or site procedures, or any third-party claim arising from my use of the tools.
12. USER QUALIFICATION
I represent that I am authorized to use UE ONE Analyzer and UE ONE Copilot and that I have appropriate training, experience, supervision, or access to qualified personnel to interpret machine-condition data and validate any recommendations before action is taken.
13. ACCEPTANCE
By clicking “I Accept,” I confirm that I have read and understood these terms. I understand that UE ONE Analyzer and UE ONE Copilot are decision-support tools only. I understand that Copilot recommendations may be inaccurate, incomplete, or unsuitable for my specific machine or operating condition. I agree to independently verify all outputs before taking action. I accept responsibility for maintenance, lubrication, operational, production, and safety decisions. I agree to the disclaimers, limitations of liability, release, and indemnification provisions stated above.
