Advanced Technology Services, Inc. Machine Health Monitoring Services Program

General Terms and Conditions

 

Offer and Acceptance

These general terms and conditions (along with any directly associated, written Advanced Technology Services, Inc. specification, proposal, Notice of Enrollment, Statement of Work, Schedule, or quotation; collectively a “Contract”) exclusively will govern all services furnished by Advanced Technology Services, Inc. or its affiliates (“ATS”) (including, without limitation, ATS’s provision of sensors, machine health monitoring, and related maintenance of sensors (collectively the “Services”)) pursuant to ATS’s Machine Health Monitoring Services Program (the “Program”). ATS’s acceptance of any offer by Customer to purchase or utilize the Services is expressly conditioned upon Customer’s assent to all the terms and conditions herein, including any terms additional to or different from those contained in any related agreement or other offer to purchase issued by Customer. ATS hereby objects to any different or additional terms and conditions contained in any acceptance by Customer of any offer or proposal made by ATS or in any other document submitted by Customer, including any terms stated on Customer’s purchase order, order form, Customer Terms and Conditions, or related agreement. No modification, addition, deletion, rescission, or waiver by ATS of any term or condition set forth herein or of any of ATS’s rights or remedies hereunder shall be binding upon ATS unless agreed to in a writing signed by an authorized representative of ATS.

Execution of Schedule(s)

Prior to the commencement of Services, the Parties shall execute one or more Schedules for each Customer site beyond the Customer site referenced in the Notice of Enrollment, specifically referencing this Contract, that shall (1) define the type and quantity of sensors ATS shall provide, (2) specify the in-scope Customer equipment, (3) set forth the fees for the Services, and (4) specify all other necessary information which is related to ATS’ provision of Services at Customer’s site(s). Customer may make a written request for changes in the Services provided under a Schedule, but acceptance of any requested change shall be at ATS’s sole discretion and shall be upon such terms and conditions as ATS shall require. No requested change shall be binding upon ATS unless accepted by ATS in writing.

Services

ATS’s Services may include: (a) providing Customer with sensors, gateways, and hardware as specified and agreed to in a Schedule and installing such sensors on Customer’s in-scope equipment for the purpose of automated data collection for in scope equipment; (b) providing necessary maintenance on sensors (in cases where inoperability is due to Customer issues, Customer may be charged on a time and material basis for such maintenance or repair); (c) monitoring sensors and hardware by way of a technology platform that will alert Customer when specified parameters are exceeded (the alerting and escalation contacts for Customer are to be provided in any Schedule(s) or Notice of Enrollment agreed to between the Parties or any other written document signed by the Parties); (d) providing enabling software and licenses required for the operation of the installed ATS sensors; (e) escalating to Customer when failure thresholds are exceeded; (f) providing Customer with access to performance dashboards for the hardware specified in an applicable Schedule; and (g) regularly providing Customers with asset health report cards with ATS insights and recommendations. 

Customer Responsibilities

Customer will be responsible for: (a) providing access to Customer’s facility to install, maintain, and remove sensor hardware specified in a Schedule; (b) replacement costs (hardware and installation costs) associated with hardware damage that occurs in connection with the Services, normal wear and tear excluded; (c) providing ATS installation and maintenance employees with a safe work site, maintaining a legally compliant safety program appropriate to the site, and providing information and training to ATS installation and maintenance employees on Customer’s safety program and site safety requirements; and (d) allowing ATS to mount, install, maintain, remove, and communicate with hardware installed at Customer’s facility using cellular or radio transmission.   

Price; Taxes; Payment Terms

All prices quoted are subject to change, without notice, at any time prior to ATS’s acceptance of Customer’s order or execution of an applicable Schedule or Notice of Enrollment. Customer shall pay ATS the amounts specified in the applicable Schedule or Notice of Enrollment, subject to any price increases contained in said Schedule or Notice of Enrollment. The Parties agree that all amounts due by the Customer to ATS for the Services are exclusive of any and all taxes and duties, however designated or levied, including, without limitation, any personal property, retail sales, goods and services, use or value added taxes in force now or in the future. Any such taxes shall be the sole responsibility of Customer. Purchase order(s) shall be issued to ATS by Customer for fees set out in any Schedule or Notice of Enrollment and as mutually agreed upon by the Parties. Unless otherwise specified, ATS shall invoice Customer monthly for Services provided under the applicable Schedule or Notice of Enrollment. Applicable taxes owed by Customer will be stated separately on each invoice. All invoices are due and payable within thirty (30) days of the receipt of the invoice. Invoices unpaid by Customer within thirty (30) days of receipt shall bear interest at a rate equal to the Prime Rate plus two per cent (2%), per annum, compounded monthly, not in advance, from the date payment was due until the date payment is made, without prejudice to any other rights, remedies, or recourses which ATS may have under this Contract and any applicable Schedules or Notice of Enrollment, at law or in equity. For the purposes of this Contract, “Prime Rate” means the annual interest rate posted and charged from time-to-time to large commercial customers as listed in the Wall Street Journal. The provision of any services or resources outside the scope of those specified in the applicable Schedule or Notice of Enrollment shall be billed to Customer at the then-current ATS rates for such services. Any services to be provided outside the scope of the applicable Schedule or Notice of Enrollment shall be documented and agreed to in writing by the Parties. Unless otherwise specified, the pricing in any Schedule or Notice of Enrollment will remain fixed for a period of one year from the start date. Each subsequent year, the pricing will increase by three percent (3%).

Warranty and Remedies

ATS warrants that all services provided hereunder or pursuant to a Schedule hereunder will be performed in accordance with generally accepted industry practices by a trained staff capable of rendering the services. ATS does not warrant that Customer’s equipment will be free of down time or other malfunctions; nor does ATS warrant that all malfunctions can or will be identified or predicted in advance or prevented. ATS warrants sensors it provides and installs for the duration of the applicable Schedule; however, Customer is fully responsible for ensuring gateway/non-interference with radio/cellular signal. Satisfaction of the above warranty will be limited, at ATS’ option, to the reperformance of any unsatisfactory services, replacement of any faulty sensors, or issuance of a credit for the purchase price of the services involved. Warranty satisfaction is available only if ATS’ examination discloses, to its reasonable satisfaction, that any alleged defect has not been caused by misuse; neglect; alteration or modification; accident; or unusual deterioration or degradation of the parts thereof due to physical environment or electrical or electromagnetic noise environment. Any technical advice furnished or recommendation made by ATS or any employee or representative of ATS concerning the Services furnished hereunder is believed to be reliable; but ATS makes no warranty, express or implied, of results to be obtained. Customer assumes all responsibility for loss or damage resulting from the application of such technical advice. Customer specifically waives and releases ATS from any and all damages, liabilities, claims, costs, and expenses that may arise based on malfunction or failure of any sensors or enabling software, or failure of ATS to predict or prevent any malfunctions, breakdown, or damage through the use of sensors and sensor technology except to the extent resulting from ATS’ gross negligence or intentional misconduct.

THE ABOVE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES WHETHER EXPRESSED, IMPLIED, OR STATUTORY. ALL IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR PARTICULAR USE, OR PERFORMANCE OR APPLICATION WARRANTIES ARE SPECIFICALLY DISCLAIMED. ANY WARRANTIES PROVIDED UNDER THIS CONTRACT ARE AVAILABLE ONLY TO THE CUSTOMER AND DO NOT EXTEND TO ANY THIRD PARTY.

Indemnity

Customer agrees to indemnify, defend, and hold ATS, its subsidiaries, affiliates, directors, officers, employees, and agents harmless from and against all claims, demands, liabilities, loss, damage, cost, and expense of whatsoever nature, including attorney’s fees, arising from, resulting from, or in any way connected with Customer or Customer’s agent’s negligence, gross negligence, willful misconduct, or violation of any law or regulation.

Limits of Liability

In no event will ATS be liable for incidental, indirect or consequential damages of any kind, whether or not foreseeable. ATS’ maximum cumulative liability relative to all claims and liabilities, including that with respect to direct damages and obligations under any indemnity, whether or not insured, will not exceed the fees paid by Customer to ATS over the previous twelve (12) month period under the applicable Schedule or Notice of Enrollment. These disclaimers and limitations of liability will apply regardless of any other contrary provision of these Terms and Conditions or related agreement between the Parties and regardless of the form of action, whether in contract, tort or otherwise, and further will extend to the benefit of ATS’ vendors, appointed distributors and other authorized resellers as third-party beneficiaries. Each provision in this Contract, any Schedule, Notice of Enrollment, or other related agreement between the Parties which provides for a limitation of liability, disclaimer of warranty or condition, or exclusion of damages is severable and independent of any other provision and is to be enforced as such.

Confidentiality

All drawings, diagrams, data, specifications, and other materials furnished by either Party, all processes applied by either Party, and all other information disclosed by either Party in the course of bidding, negotiating, or performing under this Contract, any Schedule, Notice of Enrollment, or any related agreements between the Parties are proprietary to either Party and are confidential in nature. Such materials, processes, applications, and other information relating to either Party have been developed at great expense and constitute trade secrets of either Party. Neither Party shall directly or indirectly, use, publish, divulge, communicate, disclose, copy, or make excerpts from any such materials or information without the others’ prior express written consent. All such materials or other information supplied by either Party shall be received in confidence, and both Parties shall exercise reasonable care to hold such information in confidence. The obligations of both Parties under this paragraph shall survive the termination of the Services, however caused. Upon request, on termination of the Services for any reason, both Parties shall promptly return to each other all physical and written material (and all copies thereof) containing confidential information of the other Party. ATS retains all rights in any inventions, improvements, processes, applications, discoveries, or patents it conceives relating to the products or Services delivered hereunder.

Uses of Sensor Data from Customer Equipment

At all times, both during and after the period where ATS is providing Services to Customer, ATS shall retain the full, unlimited right to utilize Customer equipment sensor data in an anonymized, non-attributable fashion. Customer sensor data may be aggregated and co-mingled with sensor data collected from other of ATS’s customer’s equipment, and such sensor data may be used to validate and improve ATS maintenance processes and methodologies across ATS’ customer base, in furtherance of ATS products and services, and to determine industry best practices concerning predictive and preventive maintenance.

Termination

In the event of the termination of any Machine Health Monitoring Solution Services Agreement, Schedule or Notice of Enrollment for any reason, Customer shall pay ATS for all Services provided up to the effective date of termination at the rates specified in the applicable Schedules or agreement, as well as for all work-in-process on a time and materials basis at the then current standard ATS rates for similar services. Either Party may terminate a Notice of Enrollment or any Schedule thereto with or without cause by giving sixty (60) days prior written notice. A Cancellation Fee will not be applicable for termination or cancellation during any free trial period, but thereafter will be applicable in the event of cancellation or reduction in number of sensors according to the table below. Any applicable Cancellation Fee shall become due and owing within fifteen (15) days of termination or cancellation.

Effective Date of Cancellation Sensor Cancellation Fee
Occurs within first 6 months of Service Commencement Date 6 months of contract fees per each canceled sensor
Occurs after 6 months, but before 12 months after Service Commencement Date 3 months of contract fees per each canceled sensor
Cancellation more than 12 months after Service Commencement Date No cancellation fee applicable

 

Return of Sensors and Risk of Loss

All sensors installed by ATS on Customer equipment at a particular Customer Site shall remain the property of ATS and must be removed by Customer and returned to ATS at Customer expense within five (5) business days following the expiration, termination, or cancellation of the applicable Services. Customer shall return sensors to ATS in the condition in which the sensors were installed by ATS, normal wear and tear excepted. Customer shall be liable to ATS for any damage to sensors in the removal or return processes. Risk of loss of sensors and related items shipped back to ATS by common carrier shall remain with Customer until the sensors and related items are received by ATS. Transportation shall be at Customer’s sole risk and expense.

Suspension of Services

In addition to the termination rights set forth above and without limiting any other rights, recourses or remedies which ATS may have under these Terms and Conditions, a Notice of Enrollment, any Schedule, or at law or in equity, ATS may, by written notice, suspend work under any Schedule or Notice of Enrollment as of the date specified in such notice upon the occurrence of either of the following events: (a) Customer’s failure to pay ATS any amount required to be paid under any Schedule within thirty (30) days of the original due date; or (b) filing by or against Customer of a petition or a resolution made or passed by Customer for the bankruptcy, winding-up, liquidation or dissolution of Customer of the appointment of a receiver or trustee in respect of Customer or of its assets or the acknowledgement by Customer of its inability to meet its debts as they fall due or a general assignment of the assets of Customer in favor of its creditors or Customer ceasing to do business as a going concern.

No Raid

While ATS is providing Services to Customer and for twelve (12) months following the later of the termination of the Notice of Enrollment or last effective Schedule, Customer agrees not to hire directly or indirectly, without the written permission ATS, any ATS employee who has provided services pursuant to this Contract or any Schedule hereunder, regardless of location or intended position. Customer agrees to pay ATS an amount equal to 30% of the applicable employee’s annual salary, including bonuses, if Customer hires the ATS employee(s) within twelve (12) months of the expiration or termination of the applicable Schedule.

Force Majeure

Neither Party assumes the risk of and shall not be liable for failure to perform any obligation relating to this Contract or any Schedule executed by the Parties caused by civil insurrection; war; fire; strike, acts of God; acts or omissions of the United States Government or any state or local government; floods; epidemics; freight embargoes; shortages of fuel, energy, the establishment of any priority or allocation system by the United States Government or any of its agencies; or any other cause beyond the control of such Party.

Independent Contractor

Nothing herein contained shall be deemed to create an agency, joint venture, partnership, or fiduciary relationship between the Parties. ATS and its employees shall at all times be considered an INDEPENDENT CONTRACTOR to Customer.

Assignment

Customer shall not assign its rights or obligations under this Contract or any Schedule without ATS’s prior written consent.

Compliance with Laws

Both ATS and Customer shall comply with all applicable laws and regulations of local, state, or federal governments.

Intellectual Property

ATS retains all ownership and intellectual property rights in and to the Services provided hereunder, derivative works thereof, all sensor data analytics and algorithms, and anything developed or delivered by or on behalf of ATS while performing the Services or in connection with this Contract, any Schedule(s), or any related agreement between the Parties.

Waiver

Any waiver by either Party of any term, provision, or condition of this Contract or a Schedule shall not be construed or deemed to be a waiver of any other term, provision, or condition of this Contract or such Schedule, nor a waiver of a subsequent breach of the same or different term, provision, or condition, unless the waiver is in writing and is signed by the other Party.

Dispute Resolution

ATS and Customer will attempt to settle all disputes, claims, or controversies arising under or in connection with these Terms and Conditions, a Schedule, or any related agreement through consultation and negotiation in good faith and a spirit of mutual cooperation. If those attempts fail, either Party, in its sole discretion, may require that such dispute be settled by arbitration under the then current rules of the American Arbitration Association. If a Party elects to submit any such dispute to arbitration, the decision and award of the arbitrator shall be final and binding, and the award may be entered in any court having jurisdiction. In the event a dispute between the Parties results in litigation or arbitration, the prevailing Party in the litigation or arbitration shall be reimbursed for all reasonable costs and expenses, including reasonable attorneys’ fees, by the non-prevailing Party. Sole and exclusive jurisdiction for any legal disputes between the Parties shall be in Peoria, Illinois.

Governing Law

The validity, interpretation, and performance of these Terms and Conditions, any Schedule or Notice of Enrollment, and all related agreements entered into by the Parties hereto shall be governed and construed in accordance with the laws of the State of Illinois.

Severability

If any section, subsection, sentence, paragraph, or clause of this Contract shall be adjudged illegal, invalid, or unenforceable, such illegality, invalidity, or unenforceability shall not affect the legality, validity, or enforceability of these Terms and Conditions as a whole, or of any section, subsection, sentence, paragraph, or clause hereof not so adjudged. Any provision adjudged illegal, invalid, or unenforceable shall be modified to the extent required to conform with the law consistent with its original intent if possible, or otherwise shall be deleted.

Time for Claims

Any action by either Party based on a claim related to the Services must be commenced within one (1) year after the basis for such claim could reasonably have been discovered, but in no event after the applicable statute of limitations has run.

Entire Agreement; Headings

These Terms and Conditions, including all applicable attachments, exhibits, Schedules, Notices of Enrollment, and other items incorporated herein by reference, contain the final and entire agreement between Customer and ATS with respect to the Services provided pursuant hereto. No agreement or other understanding purporting to add to or to modify the terms and conditions hereof, including any Master Services Agreements signed by the Parties, or any Purchase Order Terms and Conditions, shall be binding upon the Parties with respect to the Services provided by ATS unless specifically agreed to by the Parties in writing and referencing this section of the Terms and Conditions. Paragraph headings are used herein for convenience and shall not be used to interpret or change the provisions of these Terms and Conditions in any way. Neither ATS’s acceptance of Customer’s PO, nor the provision of services by ATS shall constitute an assent to any terms or conditions, which are different from or additional to the terms provided in these Terms and Conditions; and any such additional or other terms and conditions are hereby rejected.