k-SPACE ASSOCIATES, INC. STANDARD TERMS AND CONDITIONS FOR THE SALE OF GOODS AND TRAINING OR INSTALLATION SERVICES
Date of last modification: December 11, 2024
NOTE: The below are the default terms and conditions for all Sales Orders. Any separate and specific terms and conditions attached to a Sales Order supersede the below, where applicable.
Click here for k-Space Associates, Inc. Standard Terms And Conditions For NRE Services
- Applicability; Process.
(a) These Standard Terms and Conditions for the Sale of Goods and Training or Installation Services (these “Terms”) are the only terms that govern the sale of any goods (the “Goods”) by k-Space Associates, Inc., a Michigan corporation (the “Seller”), to the buyer named on the Sales Order Confirmation (as defined below) (the “Buyer”). Collectively, the Buyer and the Seller are referred to as the “Parties” and individually as a “Party.” These Terms do not cover, and expressly exclude, any non-recurring or customized engineering services.
(b) The accompanying sales order, sales order confirmation, accepted Seller proposal or similarly titled document (the “Sales Order Confirmation”) and these Terms (collectively, this “Agreement”) 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, between the Parties with respect to the purchase and sale of Goods. This Agreement supersedes any of the Buyer’s general terms and conditions of purchase regardless of whether or when the Buyer has submitted its purchase order or such terms. The Seller expressly rejects the Buyer’s general terms and conditions of purchase, and any other terms proposed by Buyer in any purchase order, and fulfillment of the Buyer’s purchase order does not constitute acceptance of any of the Buyer’s terms and conditions or serve to modify or amend these Terms. Acceptance of the Sales Order Confirmation by the Buyer (which shall be deemed accepted should the Buyer not object in writing within three (3) business days of receipt of the Sales Order Confirmation) is a prerequisite to the purchase of the Goods and shall operate as an acceptance of these Terms which are expressly incorporated into the Sales Order Confirmation. - Delivery.
(a) The Seller will use commercially reasonable efforts to ensure the Goods will be shipped in a timely manner, and consistent with the lead times set forth in the Sales Order Confirmation. For the avoidance of doubt, lead times, shipping dates, and delivery dates given by the Seller are estimates only and are subject to shipping variations and requirements. The Seller shall not be liable for any delay, loss, or damage to any Goods in transit.
(b) Unless otherwise agreed in writing by the Parties, the Seller shall deliver the Goods to the Buyer’s shipping address set forth in the Sales Order Confirmation (the “Delivery Point”) using the Seller’s standard methods for packaging and shipping such Goods. The Buyer shall take delivery of the Goods within one (1) week (or other time specified in the Sales Order Confirmation) of the Seller’s written notice that the Goods have been delivered to the Delivery Point. The Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point. The Buyer is responsible for fees associated with not taking timely delivery of the Goods, such as storage fees.
(c) The Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to the Buyer. Each shipment will constitute a separate sale, and the Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of the Buyer’s purchase order. - Title and Risk of Loss; Third-Party Licenses.
(a) Title and risk of loss pass to the Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the Prices of the Goods, the Buyer hereby grants to the Seller a continuing lien on, and security interest in and to, all of the right, title, and interest of the Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) resulting therefrom. The security interest granted under this provision constitutes a purchase money security interest under any applicable law, including any applicable Uniform Commercial Code.
(b) Notwithstanding anything to the contrary in this Agreement, the Buyer acknowledges and agrees that the Goods may contain certain third-party technology, intellectual property, and other components (“Third-Party Components”) that are made available to the Seller, pursuant to one (1) or more license or other similar agreements (each, a “Third-Party License”), for the development, production, and/or use of the Goods. The Buyer acknowledges and agrees that, with respect to any Goods containing Third-Party Components, the terms and conditions of any applicable Third-Party License shall be binding upon the Buyer, in all respects. The Buyer shall indemnify, defend, and hold the Seller harmless from any breach of a Third-Party License, by the Buyer, with respect to the use of the Goods. - Amendment and Modification. Except for Section 2(b), these Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each Party.
- Inspection.
(a) The Buyer shall inspect the Goods upon receipt (“Inspection Period”). The Buyer will be deemed to have accepted the Goods unless it notifies the Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation, as required by the Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in the Sales Order Confirmation; or (ii) product’s label or packaging incorrectly identifies its contents.
(b) If the Buyer timely notifies the Seller of any Nonconforming Goods, the Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods. The Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to the Seller’s facility located at 2218 Bishop Circle East, Dexter, MI 48130. If the Seller exercises its option to replace Nonconforming Goods, the Seller shall, after receiving the Buyer’s shipment of Nonconforming Goods, ship to the Buyer, at the Buyer’s expense and risk of loss, the replaced Goods.
(c) The Buyer acknowledges and agrees that the remedies set forth in Section 5(b) are the Buyer’s exclusive remedies for Nonconforming Goods. Except as provided under Section 5(b), all sales of Goods to the Buyer are made on a one-way basis and the Buyer has no right to return Goods purchased under this Agreement to the Seller. - Price.
(a) The Buyer shall purchase the Goods, and any necessary installation services, from the Seller at the prices (the “Prices”) set forth on the Sales Order Confirmation.
(b) All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by the Buyer. The Buyer shall be responsible for all such charges, costs, and taxes; provided, that, the Buyer shall not be responsible for any taxes imposed on, or with respect to, the Seller’s income, revenues, gross receipts, personnel, or real property. The Prices include standard packaging. The Prices exclude transportation and insurance costs, which are the responsibility of the Buyer and the Buyer shall provide the Seller with a shipping account to be charged with respect to the cost of transportation of the Goods. If such an account is not provided, or the Seller otherwise incurs any costs associated with the transportation of the Goods, the Seller shall invoice the Buyer for any such amounts. - Payment Terms.
(a) The Buyer shall pay the Seller all invoiced amounts due within thirty (30) days after the date of the Seller’s invoice, except as otherwise set forth in this Agreement. All payments hereunder shall be in US dollars and made by wire transfer of immediately available funds, check, Visa or MasterCard, or such other form of payment agreed upon by the Seller in writing; provided, that any payments made by Visa or MasterCard shall be subject to an additional processing fee of three percent (3%) of the amount paid to the Seller. Notwithstanding the foregoing, in the event the aggregate amount of any order, as set forth on the Sales Order Confirmation, exceeds One Hundred Thousand Dollars ($100,000), the Buyer shall pay (i) fifty percent (50%) of the aggregate amount set forth on such Sales Order Confirmation within five (5) days of the Buyer’s receipt of such Sales Order Confirmation, and (ii) the remaining balance within thirty (30) days after the date of the Seller’s invoice.
(b) The Buyer shall pay interest on all late payments at the lesser of the rate of three percent (3%) per month or the highest rate permissible under applicable law. The Buyer shall reimburse the Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which the Seller does not waive by the exercise of any rights hereunder), the Seller shall be entitled to suspend the delivery of any Goods if the Buyer fails to pay any amounts when due hereunder and such failure continues for ten (10) days following written notice thereof. The Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with the Seller, whether relating to the Seller’s breach, bankruptcy, or otherwise. - Training, Installation and Similar Services.
(a) To the extent that the Sales Order Confirmation includes reference to or details any training, implementation, setup, installation or other services (other than non-recurring engineering services, which would be delivered subject to a separate written agreement between the Parties and are not subject to these Terms), such services are provided in accordance with industry standard practices, will be delivered in a diligent, prompt and professional manner by personnel with the skills and experience necessary to provide such services. Other than the foregoing representations, Seller makes no representations or warranties of any kind with respect to the services and Seller retains all right, title, and interest in and to any materials or documentation provided in connection with delivery of the services, including all intellectual property rights therein. With respect to any such materials or documentation, Buyer shall not, directly or indirectly, (i) modify, create derivative works from, distribute, publicly display or publicly perform, or sub-license such materials or deliverables; or (ii) use the deliverables and materials in any way that allows third parties to exploit such deliverables or materials except as expressly contemplated herein or in the Sales Order Confirmation.
(b) For any services that constitute training or installation-related services, any Sales Order Confirmation for such services would be separate from any Sales Order Confirmation for physical products or tooling. All training or installation-related services must be paid for in advance and before any services are scheduled. Buyer will have one (1) year from the effective date of the related tooling or products Sales Order Confirmation to schedule any training or installation-related services.
(c) Once Seller’s personnel begin or initiate training or installation-related services, Seller has thirty (30) days from the date such services are begun or initiated to complete such training or installation-related services. Seller acknowledges and agrees that it is Seller’s obligation to schedule such services and to manage the speed and timeliness with which its personnel engage with Buyer and complete the services within such period. Further, Seller acknowledges and agrees that Buyer has no further obligation of any kind to provide any services that remain uncompleted or unutilized after such thirty (30) day period and no funds will be refunded or reimbursed if Seller or its personnel do not complete or utilize any requested or paid for training or installation-related services. - Limited Warranty. The Seller warrants to the Buyer that (a) for a period of one (1) year from the date of shipment of the Goods (the “Warranty Period”), the Goods will be free from material defects in materials and craftsmanship; and (b) subject to Section 3, the Buyer will receive good and valid title to the Goods, free and clear of all encumbrances and liens. Notwithstanding anything to the contrary in this Agreement, the foregoing warranties are not applicable where the Goods have been: (i) subjected to abuse, misuse, neglect, negligence, accident, abnormal physical stress or environmental conditions, use contrary to any instructions issued by the Seller, or improper testing, installation, storage, handling, repair, or maintenance; (ii) reconstructed, repaired, or altered by anyone other than the Seller or its authorized representative; or (iii) used with any third-party product, hardware, or product that has not been previously approved in writing by the Seller.
- Exclusive Remedy for Breach of Warranty.
(a) During the Warranty Period:
(i) the Buyer shall notify the Seller, in writing, of any alleged warranty claim within thirty (30) days from the date the Buyer discovers, or upon reasonable inspection should have discovered, such alleged claim (but in any event before the expiration of the applicable Warranty Period);
(ii) the Buyer shall ship the relevant Goods within ten (10) days of the date of its notice to the Seller, at its expense and risk of loss, to the Seller’s facility located at 2218 Bishop Circle East, Dexter, MI 48130, for inspection and testing by the Seller;
(iii) if the Seller’s inspection and testing reveals, to the Seller’s satisfaction, that such Goods do not conform with the limited warranty set forth herein, the Seller shall in its sole discretion, and at its expense (subject to the Buyer’s compliance with this Section 10), either (i) replace such Goods, or (ii) credit or refund the Price of such Goods less any applicable discounts, rebates, or credits; and
(iv) if the Seller exercises its option to replace, the Seller shall, after receiving the Buyer’s shipment of such Goods, ship to the Buyer, at the Buyer’s expense and risk of loss, the replacement Goods to a location designated by the Seller.
(b) The Buyer has no right to return for replacement, credit, or refund any Goods except as set forth in this Section 10. In no event shall the Buyer reconstruct, repair, alter, or replace any Goods, in whole or in part, either itself or by or through any third party.
(c) THIS SECTION 10 SETS FORTH THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND THE SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 9. - WARRANTIES DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 9, THE SELLER MAKES NO EXPRESS OR IMPLIED WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. THE BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE SELLER, OR ANY OTHER INDIVIDUAL OR ENTITY ON THE SELLER’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 9 OF THIS AGREEMENT.
- LIMITATION OF LIABILITY.
(a) IN NO EVENT SHALL THE SELLER OR ANY OF ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, LOSS OF TIME, LOSS OF USE, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE, WHETHER THE SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
(b) THE SELLER’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, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS ACTUALLY PAID TO THE SELLER PURSUANT TO THIS AGREEMENT FOR SUCH. - Compliance with Law. The Buyer shall at all times comply with all foreign, federal, state, and local laws, rules, regulations, ordinances, and orders applicable to the operation of its business, this Agreement, the Buyer’s performance of its obligations hereunder, and the Goods. Without limiting the generality of the foregoing, the Buyer shall (a) at its own expense, maintain all certifications, credentials, licenses, permits, and insurance policies necessary to conduct its business relating to the purchase or use of the Goods and (b) not engage in any activity or transaction involving the Goods, by way of shipment, use, or otherwise, that violates any law.
- Export Control. The Buyer understands and agrees that the Goods are subject to the U.S. Export Administration Regulations and other applicable U.S. laws, and they may not be resold, exported, reexported, or transferred to any other party except as authorized by applicable U.S. law and regulations. In particular, the Goods may not be resold, exported, reexported, or transferred to or within, or otherwise disposed of in, Belarus, Cuba, Iran, North Korea, Russia, or Syria, or the Crimea region of Ukraine or the so-called Donetsk and Luhansk People’s Republics, and other locations restricted by the Bureau of Industry and Security or the Office of Foreign Assets Control. The Goods also may not be resold, exported, reexported, or transferred to any parties (e.g., individuals, entities) or end-uses restricted by the Bureau of Industry and Security or the Office of Foreign Assets Control, to the extent such restrictions would prohibit such resale, export, reexport, or transfer. Current information regarding these restrictions and other U.S. sanctions and embargos can be found at: https://ofac.treasury.gov/ and https://www.bis.gov/.
- Termination. In addition to any remedies that may be provided under these Terms, the Seller may terminate this Agreement with immediate effect upon written notice to the Buyer, if the Buyer: (a) fails to pay any amount when due under this Agreement and such failure continues for thirty (30) days after the Buyer’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) 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. Notwithstanding the foregoing, the termination of this Agreement shall not relieve the Buyer of any obligation to make payment of any and all amounts due and payable in accordance with this Agreement, including, but not limited to, any interest accruing as a result of the Buyer’s failure to make timely payment of any amounts due to the Seller under this Agreement.
- Waiver. No waiver by the Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by the Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement by the Seller operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder by the Seller precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege by the Seller.
- Confidential Information. All non-public, confidential, or proprietary information of the Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by the Seller to the Buyer, 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 this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by the Seller in writing. Upon the Seller’s request, the Buyer shall promptly return all documents and other materials received from the Seller. The Seller shall be entitled to injunctive relief for any violation of this Section 17. This Section 17 does not apply to information that is: (a) in the public domain; (b) known to the Buyer at the time of disclosure; or (c) rightfully obtained by the Buyer on a non-confidential basis from a third party. To the extent there is a confidentiality agreement or non-disclosure agreement between Buyer and Seller, the terms set forth herein shall govern in the event of any conflict between these Terms and such document or agreement.
- Force Majeure. Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) reasonable control, including, the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake, explosion, or other natural disaster; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) order or action by any governmental authority or requirements of law; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other events beyond the reasonable control of the Impacted Party.
- Assignment. The Buyer’s rights, interests, or obligations hereunder may not be assigned, transferred, or delegated by the Buyer without the prior written consent of the Seller. Any purported assignment or delegation in violation of this Section 19 is null and void. No assignment or delegation relieves the Buyer 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 other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
- No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement. Nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
- Governing Law; Jurisdiction. This Agreement is governed by, and construed in accordance with the laws of the State of New York without giving effect to (i) any conflict of laws provisions thereof that would result in the application of the laws of a different jurisdiction, or (ii) the United Nations Convention on the International Sale of Goods. Subject to Section 23, all legal proceedings instituted in accordance with this Agreement shall be instituted in the state or federal courts located in, or having jurisdiction over, Washtenaw County, Michigan. Each Party irrevocably and unconditionally (i) submits to the exclusive jurisdiction of such courts, (ii) agrees not to institute legal proceedings in any other courts, (iii) waives any objection to the jurisdiction of such courts, and (iv) waives any defense of improper venue or forum non conveniens.
- Dispute Resolution. In the event of any controversy or claim arising out of or relating to this Agreement, or the breach thereof, the Parties shall negotiate, in good faith, a resolution of the controversy or claim, for a period of not less than thirty (30) days. In the event the Parties are not able to resolve the controversy or claim arising out of or relating to this Agreement, or the breach thereof, during such thirty (30)-day period, such controversy or claim may be determined by any court having jurisdiction over such controversy or claim pursuant to Section 22.
- Notices. All notices shall be in writing and addressed to the applicable Party at the address set forth on the face of the Sales Order Confirmation or to such other address for such Party as such Party may designate by written notice. All notices must be delivered by nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested).
- Severability. If any term or provision of this Agreement is determined to be 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.
k-Space Associates, Inc. Standard Terms And Conditions For NRE Services
Date of last modification: December 11, 2024
NOTE: The below are the default terms and conditions for all Sales Orders. Any separate and specific terms and conditions attached to a Sales Order supersede the below, where applicable.
- Applicability; Process.
(a) These terms and conditions of services (these “Terms”) are the only terms that govern the performance of non-recurring engineering services (the “Services”) by k-Space, a Michigan corporation (“k-Space”) to Customer named on the Sales Order Confirmation (as defined below) (“Customer”). Collectively Customer and k-Space are referred to as the “Parties” and individually as “Party.” These Terms do not cover, and expressly exclude, any terms applicable to the sale of k-Space products or goods.
(b) The accompanying sales order, sales order confirmation, accepted k-Space proposal or similarly titled document (the “Sales Order Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the Parties with respect to these Services, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement supersedes any of Customer’s general terms and conditions regardless of whether or when Customer has submitted its purchase order or such terms. k-Space expressly rejects Customer’s general terms and conditions of purchase, and fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions or serve to modify or amend these Terms. Acceptance of the Sales Order Confirmation by the Customer (which shall be deemed accepted should the Customer not object in writing within three (3) business days of receipt of the Sales Order Confirmation) shall operate as an acceptance of these Terms which are expressly incorporated into the Sales Order Confirmation. - Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each Party.
- Services. k-Space shall provide the Services and create the deliverables (the “Deliverables”) specifically described in the Sales Order Confirmation, as may be agreed upon and signed by the Parties. The Parties will work together in a joint effort to accomplish the tasks and objectives set forth in the Sales Order Confirmation. Each Party will use its reasonable effort to accomplish the tasks assigned to it in the Sales Order Confirmation, and to cooperate with and support the other Party’s performance of the tasks assigned to it, on a timely basis and in a professional manner, subject to receipt of all necessary and appropriate cooperation and support from the other party. k-Space is responsible for delivering and performing only those Services and creating those Deliverables specifically identified in the Sales Order Confirmation.
- Customer Responsibilities. While k-Space will use reasonable efforts to complete its work in accordance with the estimated schedules and charges set out in the Sales Order Confirmation, timing and cost requirements are subject to factors beyond k-Space’s control, including Force Majeure Events (defined below) and delays caused by third parties and Customer. Customer must furnish a sufficient number of trained and experienced personnel and deliver all necessary information and materials in a timely fashion. k-Space will not be responsible for any delays, cost overruns, or liability resulting from the foregoing factors. To facilitate prompt and efficient completion of work, Customer and its personnel shall cooperate fully with k-Space and its personnel in all respects, including, without limitation, providing information as to Customer requirements, providing access to the facilities and equipment/hardware on which the Deliverables are to be installed, and providing access to all necessary information regarding Customer’s systems and facilities. Customer will be responsible for making, at its own expense, any changes or additions to Customer’s current systems, software, and hardware that may be required to support operation of the Deliverables. Customer is solely responsible for backing up all computer and electronic data prior to any Services being performed under the Sales Order Confirmation. k-Space will not be responsible for any lost or damages data resulting from the Services.
- Price.
(a) Customer shall reimburse k-Space for all expenses reasonably incurred in rendering services to Customer pursuant to the Sales Order Confirmation (the “Expenses”). Expenses will include, without limitation, reasonable travel expenses (including transportation, lodging, and meals) and the cost of any courier services, photocopying, facsimile, long distance phone calls, video conferencing, and other expenses. Expenses must be approved by Customer before they are incurred. k-Space will prepare expense reports to Customer. Customer will reimburse k-Space for special or unusual expenses incurred at Customer’s specific request. k-Space will not be responsible for delays caused in seeking and obtaining Customer’s approval of expenses.
(b) All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs, and taxes; provided, that, Customer shall not be responsible for any taxes imposed on, or with respect to, k-Space’s income, revenues, gross receipts, personnel, or real or personal property or other assets. - Payment Terms.
(a) Payment terms will be as set forth in a Sales Order Confirmation. If not set forth in a Sales Order Confirmation Customer shall pay k-Space all invoiced amounts due within thirty (30) days after the date of k-Space’s invoice. All payments hereunder shall be in US dollars and made by wire transfer of immediately available funds, check, Visa or MasterCard, or such other form of payment agreed upon by k-Space in writing; provided that any payments made by Visa or MasterCard shall be subject to an additional processing fee of three percent (3%) of the amount paid to k-Space. Notwithstanding the foregoing, in the event the aggregate amount of any order, as set forth on the Sales Order Confirmation, exceeds One Hundred Thousand Dollars ($100,000.00), Customer shall pay (i) fifty percent (50%) of the aggregate amount set forth on such Sales Order Confirmation within five (5) days of Customer’s receipt of such Sales Order Confirmation, and (ii) the remaining balance within thirty (30) days after the date of k-Space’s invoice.
(b) Customer shall pay interest on all late payments at the lesser of the rate of three percent (3%) per month or the highest rate permissible under applicable law. Customer shall reimburse k-Space for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with k-Space, whether relating to k-Space’s breach, bankruptcy, or otherwise. - LIMITATION OF LIABILITY.
(a) IN NO EVENT SHALL K-SPACE OR ANY OF ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, LOSS OF TIME, LOSS OF USE, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE, WHETHER K-SPACE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
(b) K-SPACE’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, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS ACTUALLY PAID TO K-SPACE PURSUANT TO THIS AGREEMENT FOR SUCH. - Compliance with Law. Customer shall at all times comply with all laws applicable to the operation of its business, this Agreement, Customer’s performance of its obligations hereunder, and Customer’s use of the Deliverables. Without limiting the generality of the foregoing, Customer shall (a) at its own expense, maintain all certifications, credentials, licenses, permits, and insurance necessary to conduct its business relating to the Services and (b) not engage in any activity or transaction involving the Services that violates any law.
- Termination. In addition to any remedies that may be provided under these Terms, k-Space may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (a) fails to pay any amount when due under this Agreement and such failure continues for thirty (30) days after Customer’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) 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. Notwithstanding the foregoing, the termination of this Agreement shall not relieve Customer of any obligation to make payment of any and all amounts due and payable in accordance with this Agreement, including, but not limited to, any interest accruing as a result of Customer’s failure to make timely payment of any amounts due to k-Space under this Agreement.
- Waiver. No waiver by k-Space of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by k-Space. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement by k-Space operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder by k-Space precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege by k-Space.
- Intellectual Property. The Parties acknowledge that the Services and Deliverables (other than k-Space Background IP) created as a direct result of the Services provided by k-Space are specifically work made-for-hire as contemplated by Section 101 of the United States Copyright Act, 17 U.S.C. § 101. Customer is the owner of all rights, including intellectual property rights, in and to the Deliverables (but in no event any k-Space Background IP). To the extent any Deliverable does not qualify as a work made-for-hire or is not otherwise automatically vested in the Customer, k-Space agrees to and does hereby transfer, assign and convey to Customer right, title and interest in and to the intellectual property rights in the Deliverables (but in no event any k-Space Background IP). Notwithstanding any other term set forth herein, the term “Deliverables” shall expressly exclude any of k-Space’s intellectual property rights that: (i) are in existence as of the date of the applicable Sales Order Conformation, (ii) are developed outside of the delivery of the Services specifically for Customer or (iii) are generally applicable methods, processes or know-how, regardless of how or when developed or conceived, that is generally applicable to k-Space’s products or technologies (the foregoing (i) through (iii) referred to herein as “k-Space Background IP”).
- Confidential Information. All non-public, confidential, or proprietary information of k-Space, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by k-Space to the Customer, 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 this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by k-Space in writing. Upon k-Space’s request, the Customer shall promptly return all documents and other materials received from k-Space. k-Space shall be entitled to injunctive relief for any violation of this Section 17. This Section 17 does not apply to information that is: (a) in the public domain; (b) known to the Customer at the time of disclosure; or (c) rightfully obtained by the Customer on a non-confidential basis from a third party. To the extent there is a confidentiality agreement or non-disclosure agreement between Customer and k-Space, the terms set forth herein shall govern in the event of any conflict between these Terms and such document or agreement.
- Force Majeure. Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) [reasonable] control, including, the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake, explosion, or other natural disaster; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) order or action by any governmental authority or requirements of law; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other events beyond the reasonable control of the Impacted Party.
- Assignment. Customer’s rights, interests, or obligations hereunder may not be assigned, transferred, or delegated by Customer without the prior written consent of k-Space. 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 other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement. Nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
- Governing Law; Jurisdiction. This Agreement is governed by, and construed in accordance with the laws of the State of New York without giving effect to any conflict of laws provisions thereof that would result in the application of the laws of a different jurisdiction. All legal proceedings shall be instituted in the state or federal courts of the State of New York. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts. All legal proceedings instituted in accordance with this Agreement shall be instituted in the state or federal courts located in, or having jurisdiction over, New York County, New York. Each Party irrevocably and unconditionally (i) submits to the exclusive jurisdiction of such courts, (ii) agrees not to institute legal proceedings in any other courts, (iii) waives any objection to the jurisdiction of such courts, and (iv) waives any defense of improper venue or forum non conveniens.
- Dispute Resolution. In the event of any controversy or claim arising out of or relating to this Agreement, or the breach thereof, the Parties shall negotiate, in good faith, a resolution of the controversy or claim, for a period of not less than thirty (30) days. In the event the Parties are not able to resolve the controversy or claim arising out of or relating to this Agreement, or the breach thereof, during such thirty (30) day period, such controversy or claim may be determined by any court having jurisdiction over such controversy or claim pursuant to Section 16.
- Notices. All notices shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Order Confirmation or to such other address for either party as that party may designate by written notice. All notices must be delivered by nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested).
- Severability. If any term or provision of this Agreement is determined to be 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.