Services Terms and Conditions
Applicability
These Terms and Conditions for Services (these “Terms”) are the only terms that govern the provision of services by Valveworks USA, Inc. d/b/a Valveworks USA (“Service Provider”) to the customer named in Seller’s confirmation of order (“Customer”).
Seller’s confirmation of order (the “Order Confirmation”) and these Terms (collectively, this “Agreement”) together with any written financing, security, credit support and/or guarantee agreements entered into by the parties in connection with the purchase of services by Customer from Service Provider, comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Customer’s general terms and conditions regardless whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
Services
Service Provider shall provide the services to Customer as described in the Order Confirmation (the “Services”) in accordance with these Terms.
Performance Dates
Service Provider shall use reasonable efforts to meet any performance dates specified in the Order Confirmation; provided, however that any such dates shall be estimates only.
Customer’s Obligations
Customer shall:
cooperate with Service Provider in all matters relating to the Services and provide such access to Customer’s premises, and such office accommodation and other facilities as may reasonably be requested by Service Provider, for the purposes of performing the Services; respond promptly to any Service Provider request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Service Provider to perform Services in accordance with the requirements of this Agreement; and provide such customer materials or information as Service Provider may reasonably request and Customer considers reasonably necessary to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects.
Customer’s Acts or Omissions
If Service Provider’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, Service Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
Change Orders
If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing. Service Provider shall, within a reasonable time after such request, provide a written estimate to Customer of: (i) the likely time required to implement the change; (ii) any necessary variations to the fees and other charges for the Services arising from the change; (iii) the likely effect of the change on the Services; and (iv) any other impact the change might have on the performance of this Agreement.
Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with Section 24.
Service Provider may charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis in accordance with the Order Confirmation.
Fees and Expenses; Payment Terms; Interest on Late Payments
In consideration of the provision of the Services by the Service Provider and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Order Confirmation.
Customer agrees to reimburse Service Provider for all reasonable travel and out‐ of‐pocket expenses incurred by Service Provider in connection with the performance of the Services.
Customer shall pay all invoiced amounts due to Service Provider within thirty (30) days from the date of Service Provider’s invoice. Customer shall make all payments hereunder by wire transfer and in US dollars.
Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Service Provider for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Service Provider does not waive by the exercise of any rights hereunder), Service Provider shall be entitled to suspend performance for all Services if Customer fails to pay any amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
Taxes
Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder.
Intellectual Property
All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know‐ how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of the Service Provider in the course of performing the Services, including any items identified as such in the Order Confirmation (collectively, the “Deliverables”), except for any Confidential Information of Customer or customer materials, shall be owned by Service Provider. Service Provider hereby grants Customer a license to use all Intellectual Property Rights free of additional charge and on a non‐exclusive, worldwide, non‐ transferable, non‐sublicenseable, fully paid‐up, royalty‐free and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.
Confidential Information
All non‐public, confidential or proprietary information including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by one party to this Agreement (the “Disclosing Party”) to the other party to this Agreement (the “Receiving Party”), whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by the Receiving Party without the prior written consent of the Disclosing Party. Confidential Information does not include information: (i) that is or becomes public information or otherwise generally available to the public through no act or fault of the Receiving Party or its employees, representatives or agents; (ii) prior to disclosure hereunder, was already known or in the possession of the Receiving Party without restriction on use or disclosure and was not received by the Receiving Party from the Disclosing Party; or (iii) that is rightfully obtained by the Receiving Party on a non‐confidential basis from a third party.
The Receiving Party agrees to use the Confidential Information only in connection with the Services and Deliverables.
The Disclosing Party shall be entitled to injunctive relief for any violation of this
Section 10. Limited Warranty
Service Provider represents and warrants to Customer that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 11(a), SERVICE PROVIDER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PERFORMANCE OF THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OR DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. ALL OTHER
The Service Provider shall not be liable for a breach of the warranty set forth in Section 11(a) unless Customer gives written notice of the alleged defective Services, reasonably described, to Service Provider within thirty (30) days of the time when Customer discovers or ought to have discovered that the Services were defective.
Subject to Section 11(c), Service Provider shall, in its sole discretion, either: (i) repair or re‐perform such Services (or the defective part); or (ii) credit or refund the price of such Services at the pro rata contract rate.
THE REMEDIES SET FORTH IN SECTION 11(d) SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SERVICE PROVIDER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11(a). CUSTOMER HEREBY WAIVES ANY OTHER REMEDIES THAT CUSTOMER MAY HAVE, WHETHER BY CONTRACT OR LAW, FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11(a).
Limitation of Liability
IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID TO SERVICE PROVIDER PURSUANT TO THIS AGREEMENT.
The limitations of liability set forth in Section 12(a) and/or Section 12(b) above shall not apply to (i) liability resulting from Service Provider’s gross negligence or intentional misconduct and (ii) death or bodily injury of Customer resulting from Service Provider’s negligent acts or omissions.
Termination
In addition to any remedies that may be provided under this Agreement, Service Provider may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due under this Agreement and such failure continues for [fifteen (15)] days after Customer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
Waiver
No waiver by Service Provider of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Service Provider. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Force Majeure
The Service Provider shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Service Provider including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock‐outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Assignment
Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or
No Third-Party Beneficiaries
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
Governing Law
All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Louisiana without giving effect to any choice or conflict of law provision or rule (whether of the State of Louisiana or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Louisiana.
Submission to Jurisdiction
Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted exclusively in the United States District Court for the Western District of Louisiana – Shreveport Division or the courts of the State of Louisiana sitting in Caddo Parish and any appellate court from any thereof, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
Notices
All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the Order Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre‐paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
Severability
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Survival
Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Section 9 (Intellectual Property), Section 10 (Confidential Information), Section 11 (Limited Warranty), Section 12 (Limitation of Liability), Section 19 (Governing Law), Section 20 (Submission to Jurisdiction) and Section 23 (Survival).
Amendment and Modification
This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.
