NovaTech Process Terms and Conditions
Updated on September 14, 2020
- CONTRACT. Customer hereby accepts NPS’s “Proposal” for hardware, software, firmware, technical data and/or services, the “Goods” by executing a Purchase Order (“Order”) which includes these terms and conditions (“Terms”) only and this Contract includes the: Proposal, Order (expressly excluding the Customer’s printed, conflicting or additional terms and conditions) and NPS Order acknowledgment. NPS does not waive any Contract Terms or accept Customer’s terms or conditions by performance or receipt of payment, and agreed upon project specific terms in the Proposal have precedence over this Contract.
- LICENSE AGREEMENTS. A condition precedent to NPS’s obligations hereunder is Customer’s execution of the appropriate NPS License(s) and/or third party licenses required for software, documentation and firmware supplied.
- CHANGE ORDERS. Prices for changes to work in the Proposal or modifications to payment or performance schedules, shall be agreed upon by the parties and placed on a Change Order before they become effective. Performance of changes will not waive any claims for equitable adjustment in price or schedule.
- SHIPMENT AND DELIVERY. A. Transportation: Price is based on delivery F.O.B. NPS’s facility. NPS will prepay transportation and invoice Customer for actual cost. Other than for licensed materials, title and risk of loss pass from NPS to Customer upon delivery and possession of the carrier. Customer shall arrange insurance. B. Risk of Loss: Notwithstanding delivery term, insurance coverage of NPS Goods at Customer’s site prior to final acceptance or Customer’s equipment at NPS site, will be provided by the party with custody and control of the items. C. Delivery: Schedule dates will be agreed on by the parties and are contingent upon prompt receipt by NPS of all required approvals, information and agreements on dates set or time specified by NPS, after which NPS will use reasonable efforts to achieve scheduled dates. D. Packing: Goods shall be packed in accordance with NPS’s standard commercial practice, and special packing only at the Customer’s request and expense. E. Delays: If shipment of Goods is delayed at the request of, or due to acts or omissions of Customer, NPS may store Goods in any commercially reasonable manner at Customer’s sole risk and expense. Any payments that would be due NPS, had such Goods been shipped as scheduled, will be considered due and owing and NPS may invoice Customer on schedule.
- ON-SITE SERVICES. A. Travel/Living (“T/L”): Customer shall pay T/L expenses and 10% for handling. Accommodations will be economy class. T/L includes automobile travel expenses at the rates in effect for NPS personnel at the time incurred; room and board; and travel time, portal to portal. B. Working Conditions: NPS reserves the right for its personnel to refuse to work under hazardous conditions. Any staging and rigging will be erected by Customer, at its expense. NPS personnel will comply with plant safety regulations where applicable. Customer will provide any required protective clothing, safety training or equipment. C. Technical Support. Customer shall receive, inspect, store, wire, pipe, install, test, commission and start-up systems. NPS personnel are only technical support and not authorized to operate the system. Customer will indemnify and hold NPS harmless from and against claims, demands, obligations and liabilities, including any and all personal injury and/or property damage, arising in connection with these activities.
- PAYMENT TERMS: NPS will invoice based on the payment schedule below. Changes and additions will be invoiced immediately to the percentage of the original contract price previously invoiced or currently billable. Payments will be made within thirty (30) days of invoice date. Overdue invoices are subject to late charge of 1% per month of the unpaid invoice.
% of Contract Price Milestone Event
(1) 15% NPS’s Acknowledgment of Order.
(2) 30% NPS’s submittal of Configuration Drawings.
(3) 30% Allocation of 80% of hardware to project.
(4) 15% Completion of the system integration test.
(5) 10% System shipment.
(For projects under 6-month duration only, payment (1) is 75% & (2) is 25% at shipment.)
- TAXES. Prices in Proposal are exclusive of all taxes related to this Contract, and Customer shall reimburse NPS for taxes paid by NPS except taxes on NPS’s income.
- CUSTOMER DATA. Customer shall provide complete and timely information so NPS can perform and complete the work. Incomplete, incorrect or late information resulting in delay or extra work, shall result in price adjustments for NPS.
- DOCUMENT APPROVAL. NPS may require Customer approval of documents developed to specifications. Customer must inform NPS in 15 days after receipt of documents of any changes, or the documents shall be deemed approved. Changes then made at Customer’s request shall entitle NPS to price adjustment.
- FACTORY ACCEPTANCE TEST (FAT). If FAT is purchased, NPS will demonstrate completion of the system or applicable portion at NPS’s facility in accordance with NPS’s procedures. Customer may witness the procedure by giving NPS sixty (60) days written notice prior to scheduled shipment and NPS will give Customer five (5) days advance notice of testing date. Customer will observe at its expense. If Customer waives observation of FAT, NPS will verify the results as conforming to the Contract.
- FINAL ACCEPTANCE (FA). FA occurs upon completion of the last purchased acceptance test. If no FA test is purchased, FA occurs on the 31st day after delivery unless Customer gives NPS prior notice as to any nonconformity. After FA, the sole and exclusive remedy for nonconformity is the warranty herein.
- WARRANTY. NPS warrants that Goods will conform in all material respects to NPS specifications. Services will be performed in a workmanlike manner and will conform to Customer-approved drawings and documents submitted by NPS. Warranty period is from date of shipment: one year: systems, 90 days: spares, upgrades, completion of services. Warranties on third party products are passed-through to Customer unless otherwise specified. A. Remote Support: If NPS receives notice during the warranty period, it will at its option repair, replace or correct any portion of Goods that do not conform to the warranty. Hardware shall be returned to NPS, FOB, transportation charges, freight and insurance prepaid by Customer. Repaired, replaced, corrected items will be warranted for the remainder of the original 1 year warranty or 90 days, whichever is longer (30 days for 90 day warranty). B. Exclusions: Repairs or replacements attributable to inadequate preventive maintenance, normal wear and usage, fault of Customer or others, power sources supplied by others, unauthorized attachments, features, or devices, modification or alteration of hardware, software, firmware, improper loading of software, or unsuitable environmental conditions, are expressly excluded from warranty. Unauthorized modifications void the warranty for any affected portion of the system. C. Sole Warranty. This warranty is the only one from NPS and is Customer’s exclusive remedy for defects in Goods. It will not be affected by, and no obligations nor liability will arise from NPS’s rendering of technical advice or service regarding the Goods. NPS DOES NOT MAKE ANY OTHER WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- Y2K WARRANTY. NPS software produced to specifications of a NPS license Contract and used in full accord with NPS software’s documentation, upon installation, will be capable of accurately processing, providing and/or receiving date of, from, into and between the twentieth and twenty-first centuries, including the years 1999 and 2000, and leap year calculations (“Y2K Ready”); provided that, all other products, materials, information and technologies whatsoever (“Non-NPS Products”), used in combination with the NPS software fully and properly exchange data with it. For all Non-NPS Products, NPS agrees to provide all pass-through warranties, if any, with respect to Year 2000 offered by the manufacturer, licensor or supplier of non-NPS technology. Any representation or warranty made by NPS as to the Y2K of NPS software, or any other representation or warranty made herein, is automatically and immediately rendered void and meaningless if any failure is attributable to the failure or inability of non-NPS Products to be Y2K Ready. Also, any representation or warranty made by NPS as to the Y2K Readiness of NPS software, or any other representation or warranty made herein, is also automatically and immediately rendered void and meaningless if Customer makes any modification, alteration or change whatsoever to the NPS software not expressly permitted by this Contract or which is otherwise prohibited.
- FORCE MAJEURE. Neither party will be liable to the other for delays or failures to perform due to causes beyond their reasonable control and without their fault or negligence. The party experiencing the delay shall notify the other promptly and appropriate adjustments will be negotiated.
- CUSTOMER SUSPENSION OF WORK. Retaining all other rights or remedies, if NPS’s performance is delayed by Customer’s actions or omissions, or complete or partial suspension of work, the time for performance will be extended by the period of time required by NPS to return to the pre-delay state of performance. If delay or suspension continues for sixty (60) days, NPS has the right to cancel or renegotiate the Contract. Customer will pay an equitable adjustment based on a NPS claim for all reasonable costs, damages and expenses incurred by NPS incident to the delay or suspension.
- TERMINATION. In the event of material breach, the nonbreaching party may terminate the Contract if a cure has not been commenced within 30 days of giving notice of the breach. Customer’s wrongful or purported termination will be considered a material breach. However, NPS may by notice to the Customer, at any time, and without prejudice to any other rights or remedies provided by law or contained herein, suspend performance of this Contract if Customer has failed to make payments due after 10 days notice. Prior to resuming work the parties will agree to change orders to performance, dates, payment schedule and price that result from the suspension.
- LIMITATION OF LIABILITY. NPS and its licensors’ maximum liability, and Customer’s exclusive remedy, for any cause whatsoever, regardless of the form of action, whether in contract or tort, including negligence, will be limited to the recovery of actual damages up to any amounts paid by Customer with respect to the Contract. Notwithstanding the above, Customer and NPS will be liable to each other for personal injuries caused by the fault of a party or its employees, agents and contractors during work performed at Customer’s premises. IN NO EVENT SHALL NPS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF NPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, UNLESS STATED OTHERWISE IN THESE TERMS.
- NOTICE. Notices must be in writing and are deemed given when sent by certified mail or express courier service with proof of delivery to the carrier. Notice to NPS will be directed to the Project Manager of record in Baltimore, MD. Either party may change its address for notification upon written notice to the other party.
- COMPLIANCE WITH LAWS. Customer will secure or pay for any registration, licenses, permits, or other requirements of any governmental bodies, applicable to Customer’s industry or location. Any cost or expenses incurred by NPS in meeting such requirements will be charged to Customer.
- EXPORT CONTROL. If Goods require a U.S. export license before export or re-export, Customer shall comply with all applicable laws and assure NPS that without prior government authorization, Customer will not knowingly export or re-export, directly or indirectly, any Goods: 1) to any recipient, destination or country to which such export or re-export is restricted or prohibited; or 2) related to the design, production, or use of missiles, chemical or biological weapons, or nuclear weapons. This section survives termination or completion of the Contract.
- CHOICE OF LAW/JURISDICTION. This Contract is governed by the laws of the State of Maryland, without regard to its conflict of laws provisions, and the parties agree to exclusive jurisdiction and venue in the courts of Maryland.
- ASSIGNMENT: Neither Party shall assign or transfer its rights or obligations hereunder, in whole or in part, without the consent of the other. Notwithstanding the above, NPS may assign its rights and obligations to any of its subsidiaries or affiliates without the written consent of the Customer.
- NO-HIRE: For the term of this Contract and for two (2) years after its termination or expiration, Customer will not, without NPS’s prior written consent, knowingly solicit, employ or independently contract for product-related services of any NPS employee who provided Services under this Contract, and violation of this provision relating to knowingly employing or independently contracting with any NPS employee shall result in payment to NPS of stipulated liquidated damages equal to 2 years salary at the rate in effect at the time the employee is hired by Customer.
- GENERAL.No modification of any term or condition will be effective unless in writing and signed by the parties. Invalidity of a term, in whole or in part, will not affect the validity of other terms, and failure to enforce a term does not constitute a waiver.
- ENTIRE CONTRACT: This Contract, and all attachments and documents incorporated by reference, constitutes the entire and exclusive Contract between the parties relating to the subject matter hereof and supersedes all proposals, prior Contracts, understandings and negotiations, oral and written, and any printed terms on Orders or invoices issued previously or in the future, concerning the matters specified herein. No course of dealing nor usage of trade nor course of performance may be used to add to or amend the plain meaning of this Contract.