1. METHOD OF AUTHORIZATION. Client may authorize Worksighted, Inc. (“Worksighted”) to proceed with work either by signing a Worksighted “Authorization” form or by issuance of an acknowledgement, confirmation, purchase order or other communication. Regardless of the method used, these Terms and Conditions shall prevail as the basis of Client’s authorization to Worksighted. Worksighted objects to and shall not otherwise be bound by any additional or different terms, whether printed or otherwise, in Client’s purchase order or in any other communication from Client to Worksighted. Prior courses of dealing, trade usage and verbal agreements not reduced to a writing signed by an authorized representative of Worksighted, to the extent they differ from, modify, add to or detract from this agreement, shall not be binding on Worksighted. No affirmation, representation or warranty concerning the goods or services to be provided by Worksighted made by an employee, agent, salesperson, consultant or representative of Worksighted shall be binding on Worksighted unless the affirmation, representation or warranty is specifically included with this written agreement. There are no agreements, promises or understandings, either verbal or written, that are not fully expressed herein.
2. HOURLY BILLING RATES. Unless otherwise provided in this agreement, Client shall compensate Worksighted for its services at Worksighted’s hourly billing rates in effect at the time the services are provided, as set forth in Worksighted’s “Fee Schedule.” A copy of this “Fee Schedule” shall be made available to Client at Client’s request.
3. REIMBURSABLE EXPENSES. Unless otherwise provided in this agreement, Client shall compensate Worksighted for all costs and expenses incurred for or on behalf of Client, including but not limited to government fees, necessary transportation costs (including mileage at Worksighted’s current rate for service vehicles and automobiles), meals and lodging, special equipment services, postage and delivery charges, telephone and fax charges, copying, printing and binding charges, and outside technical or professional services.
4. COST ESTIMATES. Any cost estimates provided by Worksighted are estimates only, and not guarantees, nor are they intended to serve as maximum or fixed fee quotations. The ultimate cost of the project may be more or less than the amount estimated.
5. PROFESSIONAL STANDARDS. With respect to its services, Worksighted shall be responsible to the generally accepted standards of ordinary and reasonable skill and care usually exercised by other practicing professional technicians and consultants at the time and location such services are rendered. No other warranty or guarantee of any type or nature, express or implied, is given or intended.
6. SUBCONTRACTORS. Worksighted may, in its sole discretion, engage subcontractors on behalf of Client to perform any portion of the services to be provided by Worksighted hereunder, and Client agrees that Worksighted shall not be responsible for, or in any manner guarantee, the performance of such subcontractors, nor shall Worksighted be liable for any negligent acts, errors, or omissions of such subcontractors.
7. PRODUCT DELIVERY. All delivery dates are estimated, not guaranteed. Client releases Worksighted from liability for any damages or losses arising out of or resulting from any delay in shipment or delivery. Prices for any goods or product shipped are F.O.B. shipping, and exclude all loading, unloading, handling and other charges incidental to transportation, unless otherwise stated. Client assumes all risk of loss of goods or product upon delivery by Worksighted to the carrier. Client shall have 15 days from receipt to inspect the product and to return to Worksighted any nonconforming goods. All returns shall be at Client’s sole cost, expense, and risk of loss, including transportation, handling and insurance, and shall be in its original packaging and in saleable condition, and shall be subject to Worksighted’s standard restocking fee. Notwithstanding the foregoing, Worksighted shall have no obligation to accept returns of software once its original packaging has been opened, and such software shall be deemed to have been accepted by Client notwithstanding any defect or nonconformity. Client warrants that all goods returned to Worksighted will be in at least as good as condition as that in which they were delivered to Client.
8. FORCE MAJEURE. Worksighted shall not be responsible or liable for any delay or failure to deliver product, or to perform services, which directly or indirectly results from or is contributed to by any fire, flood, explosion, strike, accident, foreign or domestic embargo, seizure, act of God, insurrection, war, the adoption or enactment of any law, ordinance, regulation, ruling or order directly or indirectly interfering with or rendering or burdensome the delivery or performance hereunder, or the lack of usual means of transportation, whether or not beyond Worksighted’s control.
9. WARRANTY EXCLUSION. WITH RESPECT TO ITS SALE OF GOODS, AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, WORKSIGHTED MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. CLIENT HEREBY ACKNOWLEDGES AND AGREES THAT THE ONLY WARRANTIES APPLICABLE TO THE GOODS DELIVERED HEREUNDER ARE THOSE, IF ANY, MADE BY THE MANUFACTURER.
10. PAYMENT. Invoices will be issued on a monthly basis, or upon delivery of product or completion of service, whichever occurs sooner, payable upon receipt unless otherwise agreed. Interest at 1.5% per month shall be payable on all amounts not paid within 30 days from the date of the invoice, payment thereafter to be applied first to accrued interest and then to the principal unpaid amount. Any attorney’s fees, collection agency costs, or other cost incurred in collecting any delinquent amounts shall be paid by Client. Client also agrees to pay, on a current basis, any sales or other taxes pertaining to the products sold or services performed. In addition to any other remedies Worksighted may have, Worksighted shall have the absolute right to cease performing any further services or shipping additional product in the event the payment has not been made on a current basis.
11. TERMINATION. Either Client or Worksighted may terminate this agreement at any time and for any reason by giving written notice to the other party. In the event of termination by Client, Client shall pay Worksighted in full for all product shipped and all services performed prior to the effective date of the termination.
12. CONFIDENTIAL INFORMATION. Client agrees to keep confidential, and to not disclose to any third party without the prior written consent of Worksighted, any Worksighted information which is confidential or proprietary, or which constitutes a trade secret, including without limitation any of Worksighted’s pricing information. Client agrees that, except as otherwise expressly provided herein, there is no obligation on the part of Worksighed, either express or implied, to maintain the confidentiality of any of Client’s information.
13. DATA LOSS. Worksighted shall not be responsible for, and Client hereby forever releases and discharges Worksighted from any liability from, any data loss due to equipment failure or arising from or related to the work or services performed by Worksighted or its employees, agents or subcontractors.
14. LIMITATION OF LIABILITY. To the fullest extent permitted by law, Worksighted’s total liability to Client for any cause or combination of causes, whether arising out of claims based upon contract, warranty, negligence, strict liability or otherwise is, in the aggregate, limited to an amount no greater than the amounts paid by Client to Worksighted under this agreement. In no event shall Worksighted be liable for any consequential, incidental, exemplary, special, or punitive damages of any type or nature, including without limitation any damages for loss of profits, business or revenue.
15. INDEMNIFICATION. Client agrees to defend, indemnify, and hold Worksighted harmless from any claim, liability or defense costs for damage, injury or loss sustained by any party arising or allegedly arising from, or related to, Worksighted’s performance of services hereunder, including, without limitation any claim by an employee or agent of Client alleging an invasion of privacy; provided, however, that Client shall not be obligated to defend indemnity or hold Worksighted harmless for any damage, injury or loss caused solely by the gross negligence or willful misconduct of Worksighted.
16. LEGAL EXPENSES. In the event of a claim by Client against Worksighted, at law or otherwise, for any alleged error, omission or other act arising out of the performance of its services or the delivery of product hereunder, and to the extent Client fails to prove such claim, then Client shall pay all costs, including attorney’s fees, incurred by Worksighted in defending itself against the claim.
17. OWNERSHIP OF WORK PRODUCT. Worksighted shall remain the owner of all reports and other material provided to Client, whether in paper, electronic or magnetic form. Client shall be authorized to use the copies provided by Worksighted only in connection with the work being provided by Worksighted hereunder, or with the prior express written consent of Worksighted. Any use or reuse by Client or others for any purpose whatsoever shall be at Client’s risk and full legal responsibility, without liability to Worksighted.
18. LIMITATIONS PERIOD. Any action by Client arising out of or relating to this agreement or the services performed or product delivered by Worksighted, whether for breach of contract, breach of warranty, negligence, tort, or otherwise, must be commenced within one year after the cause of action has accrued.
19. NO THIRD PARTY BENEFICIARIES. There are no third party beneficiaries, whether actual, intended or implied, under this agreement. This agreement is solely for the benefit of Worksighted and Client and their respective successors and permitted assigns.
20. GOVERNING LAW AND JURISDICTION. This agreement shall be governed, construed and interpreted under the laws of the State of Michigan. Client agrees that the courts of Ottawa County, Michigan and/or the U.S. District Court for the Western District of Michigan shall have jurisdiction and venue over Client and any claims arising from or related to this agreement.
21. ASSIGNMENT. No right or interest in this agreement shall be delegated or assigned by Client without the prior written permission of Worksighted. Any attempt at such assignment or delegation shall be void unless made in conformity with this section.
22. WAIVER. No claim or right arising out of breach of this agreement can be waived unless the waiver is supported by consideration and is in writing signed by the party against whom it is asserted.
22. EXPORT COMPLIANCE. Purchaser shall be responsible, at its own risk and expense, for obtaining any required authorization, such as an import license, foreign exchange permit or any other official governmental authorization, even though any such authorization may, at Purchaser’s request, be applied for by Seller. Seller shall not be liable if any authorization is delayed, denied, revoked, restricted or not renewed and Purchaser shall not be relieved of its obligations to pay Seller for Orders accepted. All sales under these terms and conditions shall at all times be subject to the export control and foreign assets control laws and regulations of the United States Government, as amended. Purchaser agrees that it shall make no other disposition, except as expressly permitted under United States Law, of any products purchased from Seller other than to the country of destination specified on Purchaser’s order or as declared on Seller’s invoices. Client further represents and acknowledges that it is the intended end-user of all product supplied by Worksighted under this agreement.