UE Systems Inc.
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 Total Bearing Care 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.
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.
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 “Total Bearing Care” 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 “Total Bearing Care” 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.
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.
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.
|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 Total Bearing Care 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.
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.
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.
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.