This Terms and Conditions Agreement (“this Agreement”) is made and entered into as of _______________, 2_________ (“Effective Date”) by and between Signal Technologies, a South Carolina corporation with its principal office of business located at 111 Centrum Drive, Irmo, SC 29063 (“Signal Technologies”) and _________________, with its principal office of business located at ___________________________ (“Client”).
RECITALS
A. Client desires Signal Technologies to perform certain services as described in Statements of Work (“SOW”), a sample of which is attached hereto as “Exhibit A”.
B. The parties agree that Signal Technologies will perform said services and the parties will be bound by the terms and conditions defined below.
In consideration of the mutual promises set forth in this Agreement and in reliance upon the recitals of fact, the parties agree as follows:
TERMS AND CONDITIONS
1. STATEMENTS OF WORK:
The parties agree that the parties may execute one or more SOW’s under this Agreement. All SOWs shall contain a statement that they are governed and controlled by the terms and conditions of this Agreement The order of precedence for resolving discrepancies between this Agreement and the SOW, shall be (i) the SOW and (ii) this Agreement.
2. NON-SOLICITATION CLAUSE:
Each party agrees that during the term of this Agreement and for a period of twelve (12) months following the expiration or termination of this Agreement, such party shall not, without the prior written consent of the other party, either separately or on behalf of or through any third party (i) directly or indirectly, solicit, entice or persuade or attempt to solicit, entice or persuade any employee of the other party to leave the services of the other party for any reason, or (ii) hire or attempt to hire any such persons.
3. PAYMENT:
Payment is due as defined in the SOW. If not defined in the SOW then payment is due within ten (10) days after receipt of the invoice. All past due amounts are subject to a one and a half percent (1.5%) monthly financing charge or the maximum permissible under applicable law, whichever is lower. All drafts dishonored for any reason shall be assessed a thirty-five dollar and 00/100 ($35.00) service charge.
4. PERFORMANCE:
Signal Technologies agrees to perform the services defined in the SOW (“Services”). If a written construction schedule is not provided with the signing of the SOW, Signal Technologies shall not pay for any overtime to complete project and any overtime required shall be considered an extra and authorization shall be required according to CHANGES AND EXTRAS referred to below. Reasonable time shall be given to Signal Technologies to complete each phase of the job.
5. MATERIALS AND EQUIPMENT:
All materials, fixtures and equipment (“Materials”) shall be as warranted by the manufacturer and will be installed in a manner consistent with standard practices at this time. It is agreed that title to all Materials required (for the purpose of this proposal) to remain the property of Signal Technologies until Signal Technologies is paid in full. It is understood that Signal Technologies shall retain a security interest in said Materials until paid in full and shall have right to file any and all liens, mechanic’s liens and/or UCC financing statements listing the Materials as collateral to perfect its lien in the Materials. In the event of nonpayment, Client hereby authorizes Signal Technologies to enter Client’s premises or property for the purposes of repossessing Materials, whether or not installed, without liability to Signal Technologies.
6. EXCLUSIONS:
Signal Technologies is in no way responsible for electrical connections, fire alarm connections, permits, or fees associated with permits unless specifically noted in the SOW.
7. CHANGE ORDERS:
Any deviation, alteration or changes from the SOW will be executed at Signal Technologies’ standard rates for Materials and Services.
Signal Technologies must receive written authorization by any of the individuals listed below prior to commencement of the change order work. NO WORK SHALL COMMENCE UNTIL THIS SIGNAL TECHNOLOGIES RECEIVES
WRITTEN AUTHORIZATION. Individual authorized to sign written change orders shall be:
Name: ____________________________________________
Title: ____________________________
Name: ____________________________________________
Title: ____________________________
8. NATIONAL AND LOCAL CODES:
Errors in design by the architect and/or engineer are not the responsibility of Signal Technologies. Any additional Materials, wiring, fixtures, etc. not indicated on SOW and specifications that are required by other (i.e., Inspectors) shall not be part of any SOW.
9. WARRANTY:
Signal Technologies only warrants Services for one (1) year from the completion date. Warranty or service will not be performed if any payments according to this Agreement, SOW or any change order become past due.
Warranty does not apply to:
1. Material, fixtures, equipment and other items supplied by others.
2. Extensions or additions to the original installation if made by others.
3. Client’s failure to provide necessary maintenance if such maintenance is required for Services.
SIGNAL TECHNOLOGIES MAKES NO WARRANTIES FOR MATERIALS WHATSOEVER. Warranties for Materials, if any, are provided by the manufacturer or publisher of the Materials.
10. FORCE MAJEURE:
Signal Technologies shall not be liable for failure to perform if prevented by strikes, or other labor disputes, accidents, acts of God, governmental or municipal regulation or interference, pandemic, epidemic or shortages of labor or materials, delays in transportation, non-availability of the same from manufacturer or supplier, or other causes beyond Signal Technologies’ control.
11. LIMITATION OF LIABILITY:
IN NO EVENT SHALL SIGNAL TECHNOLOGIES BE LIABLE FOR ANY CONSEQUENTIAL INCIDENTAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES OR DAMAGES OF ANY KIND OR NATURE ALLEGED TO HAVE RESULTED FROM ANY BREACH OF WARRANTY OR ANY BREACH OF THIS AGREEMMENT. SIGNAL TECHNOLOGIES DOES NOT WARRANT THE MERCHANTABILITY OF THE MATERIALS NOR THEIR FITNESS FOR ANY PARTICULAR PURPOSE. SIGNAL TECHNOLOGIES SHALL HAVE NO DUTY TO DEFEND, INDEMNIFY, AND HOLD HARMLESS CLIENT FROM AND AGAINST ANY OR ALL DAMAGES OR COSTS INCURRED BY CLIENT ARISING FROM THE INFRINGEMENT OR VIOLATION OF ANY PATENTS, TRADEMARKS, COPYRIGHTS OR OTHER PROPRIETARY RIGHTS BY ANY MATERIALS OR SERVICES. SIGNAL TECHNOLOGIES MAKES NO WARRANTY, EXPRESS OR IMPLIED. NOTWITHSTANDING ANY OTHER TERMS OR CONDITIONS TO THE CONTRARY, SIGNAL TECHNOLOGIES’ LIABILITY UNDER THIS SECTION SHALL NOT EXCEED THE PURCHASE PRICE OF SERVICES GIVING RISE TO THE ALLEGED LIABILITY.
12. Default:
A. CLIENT’S DEFAULT.
Client is in default if (i) Client is late on payment of any installment, invoice, bill or any other indebtedness
or obligation now or hereafter owed by Client to Signal Technologies under this Agreement, SOW or change order, (ii) default in the performance of any obligation, covenant or liability contained in this Agreement, SOW, or change order or any other agreement or document between Client and Signal Technologies, (iii) any inaccuracy with respect to any warranty, representation or statement made or furnished by Client, (iv) dissolution, termination of existence, insolvency, business failure, or discontinuance of Client’s business or the appointment of a receiver for any part of
the property of, or assignment for the benefit of creditors by, Client or the commencement of any proceedings under any bankruptcy reorganization or arrangement laws by or against Client or the attachment, levy, seizure or garnishment of any of Client’s property, rights, assets (contingent or otherwise) including the Materials, or (v) any change in control of the ownership or management of Client, unless prior to the occurrence of such change of control Signal Technologies shall have been notified in writing and Client shall have obtained Signal Technologies’ prior written approval to such change in control.
B. REMEDIES.
In the event of Client’s default Signal Technologies may at its sole discretion and without notice to Client, exercise one or more of the following remedies, (i) retain all monies paid hereunder and declare immediately due and payable all outstanding invoices under this Agreement, SOW, change order or any other contract and demand or, without demand, sue for amounts then due or thereafter accruing under the past due invoice or under any other invoice, bill or other document evidencing Client’s indebtedness to Signal Technologies, (ii) suspend completion of Services or deliveries as to any or all Materials, (iii) take possession of the Materials wherever found and for this purpose enter upon any premises of Client and remove the Materials, without court order or other process of law, without any
liability for damages, suit, action or other proceeding by Client as a result of such entry and/or removal, (iv) cause Client, at its expense, to promptly return the Materials to Signal Technologies in good, like-new condition, (v) sell the Materials, or any part thereof at public or private sale (for cash or credit) at such time or times as Signal Technologies shall determine, free and clear of any rights of Client, and if notice thereof is required by law, any notice in writing of any such sale by Signal Technologies to Client not less than ten (10) days prior to the date thereof shall constitute reasonable notice thereof to Client, and (vi) exercise any and all rights accruing to Signal Technologies under any applicable contract or law upon a default by Client, including all rights and remedies accorded to Signal Technologies or secured parties under the Uniform Commercial Code.
C. MITIGATION OF DAMAGES.
Should Signal Technologies repossess any of the Materials because of Client’s default, Signal Technologies may make a commercially reasonable effort to sell such Materials at a reasonable price to a third party, provided, however, that Signal Technologies shall have no obligations to actively seek out and solicit a third party to purchase said materials.
D. COLLECTION COSTS AND ATTORNEY’S FEES.
In the event of any default on the part of Client hereunder, Client shall pay any and all collection costs, including reasonable attorneys’ fees and costs, incurred by Signal Technologies.
E. RIGHTS AND REMEDIES NOT EXCLUSIVE.
No right or remedy conferred upon or reserved to Signal Technologies by this agreement shall be exclusive of any other right or remedy provided herein or by law. All rights or remedies conferred upon Signal Technologies by this agreement and by law shall be cumulative and in addition to any other right or remedy available to Signal Technologies.
13. INSURANCE:
Signal Technologies carries Workmen’s Compensation as required by law and Professional Liability Insurance covering its work on this job. Client agrees to notify its insurance company of the commencement of Services. Risk of loss due to fire, windstorm, pandemic, epidemic, vandalism, or any other casualty shall be upon the Client.
14. INDEMNIFICATION:
Client agrees to indemnify and hold Signal Technologies and its
officers, directors, servants, owners, employees, agents and advisors (“Signal Technologies Indemnified Parties”) harmless from and against (i) any and all claims, damages, costs, expenses (including, but not limited to, reasonable attorneys’ fees and costs) or liabilities that may result, in whole or in part, from any third party using Services or Materials provided under this agreement, (ii) Client’s breach of any of the warranties or representations contained in this Agreement, (iii) Client’s infringement or misappropriation of any of Signal Technologies’ trademarks or other intellectual property and (iv) for any bodily injuries, property damage or other losses that occur on Client’s worksite as a result of Client’s negligence or intentional misconduct. Any defense provided hereunder shall be by counsel of Signal Technologies’ choice.
15. ASSIGNMENT:
This Agreement and all rights, obligations and performance hereunder may not be assigned by Client without prior written consent of Signal Technologies.
16. WAIVER:
No delay or omission by Signal Technologies to exercise any right or power shall impair any such right or power or be construed to be a waiver thereof. A waiver by Signal Technologies of any term, condition or agreement to be performed by Client or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other term, condition or agreement herein contained. No change, waiver or discharge hereof shall be valid unless presented in writing to Signal Technologies and signed by an authorized representative of Signal Technologies.
17. GOVERNING LAW:
This Agreement, SOW and any change order shall be construed and enforced in accordance with the laws of South
Carolina without regard to the conflicts of law provisions thereof.
18. ENTIRE AGREEMENT/MODIFICATION:
The parties intend this Agreement to be the complete statement of the terms of their Agreement. This Agreement replaces and supersedes any prior agreements between them with respect to the subject matter hereof. No course of prior dealing or usage of trade shall be relevant to amend or interpret this agreement. This Agreement may not be changed, modified or amended except by an instrument in writing signed by both Signal Technologies and Client.
19. COMPLIANCE WITH LAWS:
The parties agree to comply with all relevant laws, rules, regulations and requirements of the United States.
20. TERMINATION: If Client materially or repeatedly defaults in the performance of its duties or obligations as set forth herein, Signal Technologies may terminate this Agreement and/or any SOW with cause by providing written notice of the default and thirty (30) days to cure such default and, if the default is not substantially cured at the end of thirty (30) days. Signal Technologies may terminate this Agreement and or/any SOW’s with cause immediately upon written notice to Client in the event of (a) the liquidation or insolvency of Client; (b) the appointment of a receiver or similar officer for Client; (c) an assignment by the Client for the benefit of all or substantially all of its creditors; (d) entry by Clienti nto an agreement for the composition, extension, or readjustment of all or substantially all of its obligations; or (e) the filing of a petition in bankruptcy by Client or against Signal Technologies under any bankruptcy or debtors’ law for its relief or reorganization which is not dismissed within ninety (90) days.
21. INDEPENDENT CONTRACTOR: Signal Technologies represents that it is an independent Contractor under the laws of the United States and acknowledges that the Client is relying upon this representation. Neither Signal Technologies nor Signal Technologies’ officers, directors, owners, employees or agents (“Staff”) is or shall be
deemed to be employed by the Client. Client is contracting with Signal Technologies for Services described in the SOW and Signal Technologies reserves the right to determine the method, manner and mean by which Services will be performed. Signal Technologies is not required to perform Services during a fixed hourly or daily time and if Services are performed at the Client’s premises, then Signal Technologies’ time spent at the premises is to be at the discretion of the Signal Technologies; subject to the Client’s normal business hours and security requirements. Signal Technologies hereby confirms to Client that Client will not be required to furnish or provide any training to Signal Technologies to enable Signal Technologies to perform Services required hereunder. Services shall be performed by Signal Technologies or Signal Technologies’ Staff, and Client shall not be required to hire, supervise or pay any assistants to help Signal Technologies performs Services under this agreement. Signal Technologies shall not be required to devote Signal Technologies’ full time nor the full time of Signal Technologies’ Staff to the performance of Services required hereunder, and it is acknowledged that Signal Technologies has other customers and Signal Technologies offers services to the general public. The order or sequence in which the work is to be performed shall be under the control of Signal Technologies. Except to the extent that the Signal Technologies’ work must be performed on or with Client’s tools, equipment, and supplies, all materials used in providing Services shall be provided by Signal Technologies. Subject to the Client’s obligation to make full and timely payment(s) for Signal Technologies’ services, Signal Technologies shall be obligated to complete Services agreed upon and shall be liable for the performance of Services to the extent and as provided for in this Agreement. Signal Technologies shall take appropriate measures to insure that Signal Technologies’ Staff is competent and that they do not breach any confidentiality provisions contained in this Agreement.
22. CONSTRUCTION:
The parties acknowledge and agree that each of them have participated in the drafting of this Agreement and that this Agreement has been reviewed by the respective legal counsel for such parties and that the normal rule of construction that any ambiguities are to be resolved against the drafting party shall not be applied to the interpretation of this Agreement. No inference in favor of, or against any party shall be drawn from the fact that one party has drafted any portion of this Agreement.
23. NOTICES:
All notices and other communications relating to this Agreement or its terms must be either: (1) in writing and sent via first class United States Postal Service certified or registered mail with return receipt requested; or (2) via FedEx or other similar overnight courier to the address set forth above. All such notices must be sent to Signal Technologies, Inc. 111 Centrum Drive, Irmo, South Carolina 29063, Attention CEO. All notices sent by Signal Technologies hereunder will be deemed received two (2) days after postmark or shipping date, or on the day of actual receipt if earlier. In addition, Signal Technologies may provide notices hereunder to Client via email to the email address provided to Signal Technologies. Emails will be deemed received twenty-four (24) hours after being sent.
IN WITNESS WHEREOF, the parties have each caused this Agreement to be signed and delivered by its duly authorized officer or representative as of the Effective Date.