Alltite Bolting and Calibration Services - Standard Terms and Conditions
Original Version Effective date: May 20th, 2015
By executing or receiving a service order, service ticket or invoice (“Service Order”), or otherwise purchasing any bolting or calibration services from Alltite, Inc. (“Alltite”), the customer (“Customer”) agrees to be bound by these Standard Terms and Conditions. Further, these Standard Terms and Conditions and any Service Order which refers to these Standard Terms and Conditions are intended to and are agreed to collectively constitute one agreement (“Agreement”).
Alltite will provide certain bolting services (“Bolting Services”) or calibration services (“Calibration Services”) for Customer’s Equipment as described on the Service Order and more fully defined in Section 4 herein. In consideration for receiving the Bolting Services or Calibration Services, as the case may be, Customer will pay Alltite a service fee (“Services Fee”) payable in the amount and manner set forth on the Service Order. The same Service Order will be used for all invoicing purposes throughout the Term and is hereby incorporated by reference into this Agreement.
2. Payment Terms.
(a) In consideration of Alltite rendering the Bolting Services or Calibration Services, Customer will pay the Services Fee set forth on each Service Order. Except as expressly provided to the contrary on the Service Order, all payments will be due thirty (30) days from the invoice date. Customer will remit all payments to Alltite's address set forth in the Service Order or as otherwise directed by Alltite.
(b) With respect to Calibration Services, in addition to the Services Fee, Customer will be responsible for the payment of all (i) shipping and freight charges incurred by Alltite while providing the Calibration Services; and (ii) any additional charges incurred for Repair Services or Third Party Calibration Services under Section 4, as applicable.
(c) All sales, property, excise and other applicable state and local taxes will be added to the pricing otherwise established under the Service Order and paid by Customer.
(d) All past due amounts will be subject to a service charge accruing at the lesser of one and one-half percent (1½%) per month or the highest interest rate permitted by law.
(e) If on-site calibration, repair or bolting services are cancelled by the customer within 24 hours of the scheduled service or if all the quoted tools to be calibrated are not available, the customer will be invoiced for a minimum of 80% of the quoted price plus applicable taxes.
Unless terminated earlier in accordance with Section 11, the term of this Agreement (“Term”) shall commence and be for the time period as stated on the Service Order; provided that if no Term is designated on the Service Order, then this Agreement will continue until the date when Alltite has completed the Bolting Services or Calibration Services, as applicable, pursuant to the terms of any Service Order.
4. General Terms of Services.
Subject to the express terms of the applicable Service Order and only to the extent purchased by Customer, Alltite will provide certain Bolting Services or Calibration Services as set forth on a Service Order for certain equipment (collectively, “Equipment”) of Customer in accordance with the following terms and conditions:
(a) For Bolting Services. With respect to Bolting Services:
Alltite will provide to Customer the Bolting Services as more fully described on the Service Order. Such Bolting Services may include, as applicable, (A) Alltite’s actual performance of Bolting Services on Customer’s eEquipment, or (B) Alltite’s supervision of Customer’s employees’ or independent contractors’ performance of Bolting Services on the Equipment. For all Bolting Services, Alltite will assess any high-risk, bad actors which are requested by Customer.
(b) For Calibration Services. With respect to Calibration Services:
(i) Alltite’s provision of the Calibration Services will include condition and functionality inspection and adjustment “as found” and “as left” readings and a calibration certificate for each piece of Equipment calibrated by Alltite. Alltite will upload the results and data obtained for each item of Equipment calibrated by Alltite (or its subcontractors) into Alltite’s web-based calibration documentation system commonly known as TorqueWare™ (“TorqueWare™”). Customer will be granted a non-exclusive limited license to access and use TorqueWare™ subject to the terms and conditions of Alltite’s TorqueWare™ User Agreement, as same may be amended by Alltite from time to time. In addition, Alltite will provide preventive maintenance and minor repairs for the Equipment as part of the Calibration Services (i.e., does not require replacement of any part or component). Alltite reserves the right to refuse to provide Calibration Services for any Equipment that Alltite determines in good faith is not serviceable.
Alltite may offer to Customer certain third party calibration services (“Third Party Calibration Services”) not provided by Alltite at an additional cost as agreed upon by the parties from time to time. The provision of any Third Party Calibration Services will be subject to the sole discretion of Alltite.
(ii) On-Site or In-House Service. Alltite will provide the Calibration Services either on-site at Customer’s location (“On-Site”) or at Alltite’s Offices in accordance with the Service Order. In the event Alltite provides any On-Site Calibration Services, then Customer shall provide an On-Site service environment that allows reasonable workspace and safe working conditions that meets Alltite’s working environment standards. To the extent necessary, Alltite will have the right, at any time during Customer’s normal business hours, to enter the Customer’s On-Site location in order to perform the On-Site Calibration Services, and Customer will provide reasonable assistance and facilities so as to expedite the performance of the Calibration Services. In the event Alltite provides the Calibration Services at Alltite’s Offices, then Customer will be responsible for all shipment costs and freight expenses associated with shipping the Equipment to Alltite Offices for the Calibration Services. For all Calibration Services performed at Alltite Offices, Alltite will arrange, at Customer’s expense, for return transportation of the re-calibrated Equipment to its original place of shipment via standard ground delivery unless otherwise requested by Customer.
(iii) Repair Services. To the extent the condition of any Equipment requires any repair services (“Repair Services”) in excess of the Calibration Services, Alltite will notify Customer of the Equipment’s repair needs. Customer may request that Alltite perform certain Repair Services on the Equipment (“Repair Services”). If Alltite is able or willing to perform the Repair Services, then the Repair Services will be provided at Alltite’s then current repair rates. Alltite will arrange, at Customer’s expense, for return transportation of any repaired Equipment to its original place of shipment via standard ground delivery at Customer’s sole cost and expense.
5. Exclusive Warranty.
Alltite warrants that all Bolting Services, Calibration Services, and Repair Services, as applicable, provided to Customer pursuant to a Service Order will be performed in a good and workmanlike manner consistent with industry standards. If Alltite receives notice from Customer within 30 days of any unacceptable Bolting Services, Calibration Services or Repair Services, as the case may be, Alltite will re-perform the defective services at no additional cost other than freight or shipping. THE FOREGOING SHALL BE THE SOLE REMEDY OF CUSTOMER FOR ANY BREACH OF WARRANTY BY ALLTITE.
EXCEPT AS EXPRESSLY SET FORTH ABOVE, ALLTITE MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE QUALITY OR EFFECTIVENESS OF ANY OF THE BOLTING SERVICES, CALIBRATION SERVICES OR REPAIR SERVICES PROVIDED BY ALLTITE UNDER THIS AGREEMENT. ALLTITE DISCLAIMS THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6. Limitation of Liability.
IN NO EVENT SHALL ALLTITE BE LIABLE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL THEORY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE BOLTING SERVICES, CALIBRATION SERVICES OR REPAIR SERVICES, INCLUDING WITHOUT LIMITATION, LOST BUSINESS PROFITS, LOSS OF USE, OR BUSINESS INTERRUPTION. FURTHER, ALLTITE'S ENTIRE LIABILITY FOR DAMAGES OF ANY KIND UNDER THIS AGREEMENT SHALL NOT, IN ANY EVENT, EXCEED AN AMOUNT EQUAL TO THE CUMULATIVE SERVICES FEES PAID BY CUSTOMER TO ALLTITE DURING THE THEN PREVIOUS TWELVE (12) MONTH PERIOD OCCURRING PRIOR TO THE EVENT OR CONDITION GIVING RISE TO ANY SUCH CLAIM.
7. Independent Contractor.
The relationship of the parties is that of independent contractors and is not one of joint venture, partnership, employment or agency, express or implied. Customer is interested only in the results to be achieved by Alltite in the rendering of the Bolting Services, Calibration Services and Repair Services, and the conduct and control of the persons performing the Bolting Services, Calibration Services and Repair Services shall remain solely with Alltite as independent contractor.
8. Risk of Loss.
The risk of loss of any Equipment shipped to or from Alltite Offices shall at all times be borne by Customer.
9. Indemnification by Customer.
Customer shall indemnify, save and hold harmless Alltite from any and all claims, damages, suits, actions, causes of action, losses, damages, fines, and liabilities, including reasonable attorney fees, arising out of the acts or omissions of Customer (intentional or negligent) occurring during the performance of this Agreement, including without limitation, any injury to Alltite’s employees or any damage to Alltite’s personal property occurring while On-Site at Customer’s premises.
During the Term and for one (1) year after the expiration or earlier termination of this Agreement, Customer (and any affiliates) shall not knowingly hire or directly solicit for employment any employee of Alltite unless Customer obtains the prior written consent from Alltite.
11. Default and Termination.
(a) Customer will be deemed to be in default under this Agreement if:
(1) subject to the provisions of paragraph 2, Customer fails to pay any amount due under this Agreement within thirty (30) days after the same becomes due and payable or fails to timely remit payment on three (3) or more occasions during any twelve (12) month period whether or not actually paid; or
(2) In the event Customer commits a material breach of any of its obligations hereunder unless Customer cures such breach within thirty (30) days of written notice thereof or commits a material breach of its obligations hereunder on three (3) or more occasions during any twelve (12) month period regardless of whether the same is cured; or
(3) upon the institution of bankruptcy, receivership, insolvency, reorganization, or other similar proceedings by or against Customer or any affiliate of Customer under any section or chapter of the United States Bankruptcy Code, as amended, or under any similar laws or statutes of any state thereof, if such proceedings have not been dismissed or discharged within thirty (30) days after they are instituted; or the insolvency or making of an assignment for the benefit of creditors or the admission by Customer of its inability to satisfy any debts as they mature or the institution of any reorganization arrangement or other readjustment of debt plan of Customer or the appointment of a receiver for all or substantially all of Customer’s assets or any corporate action taken by Customer in furtherance of any of the above actions.
(b) Alltite will be deemed to be in default of its obligations under this Agreement if:
(1) In the event Alltite commits a material breach of any of its obligations hereunder unless Alltite cures such breach within thirty (30) days of written notice thereof or commits a material breach of its obligations hereunder on three (3) or more occasions during any twelve (12) month period regardless of whether the same is cured; or
(2) upon the institution of bankruptcy, receivership, insolvency, reorganization, or other similar proceedings by or against Alltite or any affiliate of Alltite under any section or chapter of the United States Bankruptcy Code, as amended, or under any similar laws or statutes of any state thereof, if such proceedings have not been dismissed or discharged within thirty (30) calendar days after they are instituted; or the insolvency or making of an assignment for the benefit of creditors or the admission by Alltite of its inability to satisfy any debts as they mature or the institution of any reorganization arrangement or other readjustment of debt plan of Alltite or the appointment of a receiver for all or substantially all of Alltite’s assets or any corporate action taken by Alltite in furtherance of any of the above actions;
(c) In the event of any expiration or termination of this Agreement, any provision of this Agreement that is intended by their context to continue and survive shall so continue and survive.
12. Expenses of Enforcement.
In the event litigation or arbitration is instituted to enforce this Agreement, the prevailing party will be entitled to recover from the other party such sum as the arbiter or court, as the case may be, may judge reasonable as attorneys' fees at trial and upon appeal, in addition to all other sums provided by law.
In the event of any dispute or controversy arising out of or related to this Agreement, including the interpretation of any provision of this Agreement, which cannot be resolved informally by the parties, such dispute will be resolved by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules then in effect, except as such rules may be modified by this Agreement or by the mutual consent of the parties. Any arbitration proceeding conducted hereunder will be held in Wichita, Kansas and will be enforceable in any court of competent jurisdiction.
14. Successor Interests.
Subject to any limitation upon assignment expressly contained herein, this Agreement will be binding upon and inure to the benefit of the successors, subcontractors, and assigns of the parties.
All notices or other non-operational communications required to be given hereunder shall be in writing and delivered either personally, by email to Customer at the email address listed on the Service Order and to Alltite at firstname.lastname@example.org or by U.S. mail, certified, return receipt requested, postage prepaid, and addressed to Customer or Alltite at the address listed on the then most recent Service Order, or, as to each party, at such other address as shall be designated by such party in a notice in writing to the other party. Notices delivered personally shall be effective upon delivery and notices delivered by mail shall be effective upon their receipt by the party to whom they are addressed. Communication may also be transmitted via email provided that the transmitting party retains a record of when and to whom the communication was electronically transmitted.
16. Force Majeure.
Neither party will be liable for any delay or failure to perform its obligations solely due to any cause beyond its reasonable control. Provided, any delay resulting from such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable.
17. Limitations of Actions.
No actions, regardless of form or basis, arising out of transactions related to this Agreement, including the services performed or to be performed may be brought by either party more than two (2) years after the cause of action has first accrued except that an action for nonpayment may still be brought two (2) years after the date of last payment owed by Customer under this Agreement.
Waiver of any breach of this Agreement committed by either party will not constitute a waiver of any other or future breach. Specifically, Alltite may elect to continue performance notwithstanding a breach committed by Customer, but Alltite's performance will not constitute a waiver of such breach nor otherwise limit the exercise of Alltite’s remedies.
19. Number and Captions.
As used herein, the singular will include the plural, and the plural, the singular. All captions are intended solely for convenience and will in no way be deemed to limit or explain any of the provisions of this Agreement.
If any provision of this Agreement is held invalid, such invalidity will not affect any other provisions which can be given effect without the invalid provision.
21. Entire Agreement.
This Agreement and any Service Order will be construed in accordance with the laws of the State of Kansas. This Agreement and any Service Order constitute the entire agreement between the parties and may only be modified by a written instrument executed by the parties. Any term or condition of an offer set forth on any Service Order expressly supersedes any conflicting term or condition of this Agreement.
Should any provision of this Agreement require judicial interpretation, the parties hereto agree that the court interpreting or construing the same shall not apply a presumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that a document is to be more strictly construed against the party who itself or through its agents prepared the same, it being agreed that the Customer, Alltite and their respective agents have participated in the preparation hereof.