Terms of service

Tempest Technology Corporation

Terms and Conditions (“Terms and Conditions”)

 

1.       Goods and Services. Any and all goods, supplies, products and other tangible items provided by Tempest Technology Corporation (“Tempest”) to the customer (“Customer”) shall be known as “Goods.” Any and all services, tasks and actions performed and/or provided by the Tempest shall be known as “Services.” The Tempest is solely responsible for any and all necessary labor, materials, tools, equipment, planning, supervision, taxes and other necessary services and costs to provide the Goods and/or perform the Services (collectively referred to hereinafter as the “Work”).

2.       California Law Prevails. The laws of the State of California shall govern the interpretation and enforcement of the Purchase Order and these Terms and Conditions. Tempest, and any of its subcontractors, agents, suppliers and/or subsellers, and all Goods or Services provided under the Purchase Order and these Terms and Conditions, shall strictly comply with all laws, treaties, ordinances, judgment, decrees, injunctions, writs and orders of any court or governmental agency or authority, and any and all rules, regulations, codes, orders, interpretations of any federal, state, county, municipal, regional, environmental or other governmental body, instrumentality, agency, authority and/or court having jurisdiction over these Terms and Conditions or any activity or event connected with these Terms and Conditions (collectively “Applicable Law”). The failure to comply with Applicable Law shall be a material breach of these Terms and Conditions. The Tempest shall be solely responsible for the safety of its employees, subcontractors, subsellers, agents, invitees and suppliers, and shall indemnify the Authority and the County of Fresno from any and all costs and/or liabilities arising from the Tempest’s failure to maintain safety.

3.       Terms and Conditions Control. Tempest is deemed to have accepted these Terms and Conditions upon the first to occur: (a) Seller signing and returning an acknowledged copy of these Terms and Conditions; (b) Seller’s shipment of any of Goods or the performance of any Services. In the event the Authority does not receive a signed acknowledgement of these Terms and Conditions within ten (10) days after issuance to the Seller, the Authority reserves the right to cancel the same without any obligation to the Seller. Seller’s acceptance of these Terms and Conditions is limited to the acceptance of the express terms of the offer contained herein. Any quote, proposal and/or other documentation provided by the Seller for terms additional to or different from the Purchase Order and these Terms and Conditions or any attempt by Seller to vary the terms hereof is objected to and rejected by the Authority. In the event of a conflict between any of the requirements of the Purchase Order and these Terms and Conditions, the more stringent requirement shall control as determined in the sole and absolute discretion of the Authority.

4.       Warranties and remedies. Seller expressly warrants: (a) that any and all of the Goods provided to the Authority: (i) shall be merchantable in the trade as goods strictly of the kind and quality required to be furnished by the Seller under the Purchase Order;

(ii) shall be new, unused (unless the Authority specifically orders refurbished or used Goods), of good quality and free from latent and patent defects in design, material, manufacture and workmanship; (iii) are of the quality, size, dimension and specifications ordered by the Authority; (iv) are not restricted in any way by patents, copyrights, trade secrets, security interest, lien and/or other encumbrances or rights of third parties that would affect the Authority’s use of the Goods; (v) have been properly stored, labeled, handled and shipped; (vi) shall be safe for use and comply with all Applicable Law; (vii) shall strictly conform to the requirements of the Purchase Order; and (viii) shall be fit for the particular purpose(s) for which the Authority intends to use the Goods; and (b) that any of all of the Services performed for the Authority: (i) shall be performed in a workmanlike manner; (ii) are to be performed by the Seller’s employees, subcontractors and agents; (iii) shall be performed by persons who possess the necessary skills, experience, registrations, licenses, certifications and qualifications required to perform the Services; (iv) and shall strictly comply with the requirements and expectations of the Authority. The Seller further warrants: (i) there is no actual or potential conflict of interest between the Seller and the Authority; (ii) it is presently compliant and shall comply with any applicable provisions of the Authority’s Ethics Ordinance; (iii) the Seller is an equal opportunity employer; and (iv) the Seller is a legally organized entity in good standing under the laws of the state of its organization and, where required, in good standing under the laws of the State of California. If the Goods or Services are determined by the Authority not to conform with Seller’s warranties stated above, the Seller shall promptly upon receipt of written notice of such nonconformity from the Authority, and at no cost to the Authority, repair the Goods and/or reperform the Services so that they conform with the Seller’s representations or replace them with conforming Goods and/or Services. In lieu of such repair or replacement by Seller, the Authority may, at its option and not in limitation of any other right or remedy it may have, do any of the following: (i) reject the non-conforming Goods; (ii) revoke acceptance of nonconforming Goods after the discovery of the nonconformance; (ii) reject the Services; and (iv) require Seller to refund any amounts paid by the Authority for any Goods and/or Services for which a breach of warranty exists and remove the nonconforming items. Seller shall be liable for any and all amounts, liabilities and/or damages incurred and sustained by the Authority in connection with any breach of warranty, including but not limited to the removal, replacement, repair, shipping, receiving, storage and reinstallation costs and all other incidental and consequential damages. Seller’s warranties and related obligations shall survive final payment and acceptance of the Goods and Services or the termination of these Terms and Conditions, whichever occurs first, for a period of 6 years. Seller shall perform all inspections and tests with respect to the Goods and Services as is required by the Purchase Order and normal trade practices. Notwithstanding any inspection, acceptance of the Goods and Services shall be at the delivery point. Any inspection or test by the Authority shall not relieve Seller of any warranty obligation or liability with respect to the Goods and Services, nor shall any such inspection or test or failure to inspect or test be interpreted as, or in any way imply, acceptance of the Goods or Services.

5.       Delivery Schedule. Seller agrees to keep the Authority fully informed regarding its delivery schedule for the Goods and Services, and shall immediately advise the Authority in writing of any delay or anticipated delay. If the Authority provides a stated need for the Goods by a given date, the Seller shall ship the Goods by a more expensive way than specified in the Purchase Order to ensure the Authority receives the Goods by that date, and any increase in the transportation costs resulting therefrom shall be paid by the Seller. Seller shall not ship the Goods under any reservation of rights. The Authority shall have the right to inspect the Goods before or after payment.

6.       Title and Risk of Loss. Seller warrants that it has the right to sell the Goods and the ability to deliver good title to all Goods and Services. Title to the Goods shall pass to the Authority upon the earlier of: (a) the date the Authority paid for the Goods; or (ii)

the date the Goods are received and accepted by the Authority. In addition to its other insurance obligations, Seller shall insure the full value of the Goods while in transit and in storage prior to the delivery of the Goods and acceptance of the Authority. Seller shall have retained the risk of loss with respect to the Goods (regardless of the Authority’s title thereto) until the Goods have been delivered to and accepted by the Authority at the delivery point specified in the Purchase Order. Seller shall promptly execute and provide the Authority with any and all documentation necessary to transfer title to the Goods or evidence of the Authority’s title thereto.

7.       Indemnity. To the fullest extent permitted by applicable law and commensurate with the Seller’s degree of fault, the Seller shall defend, hold harmless and indemnify the Authority and the County of Fresno, and any respective director, officer, board member, employee, agent, successor and assign of the Customer and/or the County of Fresno, from and against any and all damages and liabilities involving any of the following:

(a)   Any actual or alleged infringements of any patent, trademark, copyright or other intellectual property right related to arising from the Goods and/or Services, except for that which arises solely from acts of the Customer;

(b)  Any actual or alleged injury or death to any person, or damage to or destruction of property (including the loss of use thereof), or any other damage or loss by whomsoever suffered resulting from or arising out of or in connection to the Goods and/or Services, whether or not such damage or loss is due to the negligence of any kind or character on the part of the Customer, except for that which arises solely from the acts of the Customer or a third-party;

(c)  Any actual or alleged failure or material breach of the Seller to comply with the Purchase Order;

(d)  Any actual or alleged failure of the Goods or Services to comply with the Purchase Order; and

(e)  Any lien, claim or encumbrance (of any type) in which any person or entity seeks or claims an interest in the Goods or Services which is in conflict with or otherwise impairs the Customer’s sole and exclusive right to the Goods and Services.

The foregoing indemnification obligations shall: (i) not be affected or limited by, in any way, any insurance required by the Seller; and (ii) survive the termination and expiration of these Terms and Conditions for a period of 6_ years.

8.       Changes. The Customer shall have the right at any time and in its sole and absolute discretion, without invalidating or breaching the Purchase Order, to direct Seller by written notice to add to, reduce, suspend or otherwise change the scope of the Purchase Order and to make changes to the quantities, type, specifications and character of the Goods, the sequence of the performance of the Services, scope of Services, time for performance of the Services, as well as the materials, packaging, time and place of delivery and method of transportation of the Goods (any such addition to, reduction, suspension or other change by the Customer defined as a “Change”). In the event of a Change, the Total Purchase Order Amount may be adjusted by the agreement of the Customer and the Seller. The Seller shall have no right to suspend the performance of the Work following a Change by the Customer.

9.       Payment. The total amount of money due from the Customer to the Seller and as stated on the Purchase Order shall be the “Total Purchase Order Amount.” Payment shall be paid only for Goods and/or Services that are specifically named in the Purchase Order. No additional costs for items, services, overtime, holiday pay, premium pay and the like will be paid by the Customer without its prior express written consent. The Total Purchase Order Amount shall not include any federal excise taxes or sales taxes imposed by any state or municipal government. The Total Purchase Order Amount may include annual estimated orders, established solely for the convenience of the Customer. Should the actual Goods and/or Services be less than the Total Purchase Order Amount, the Customer shall not be obligated to utilize or pay for any unused balance. In no event shall the Seller be entitled to invoice for or collect any amount in excess of the Total Purchase Order Amount. The Seller waives any and all claims for additional compensation for which it did not receive the prior written approval of the Customer, it being expressly agreed the Seller shall not exceed the Total Purchase Order Amount without the prior written approval of the Customer. Seller shall be responsible for all charges related to the Goods and Services in excess of the Tot al Purchase Order Amount, but shall nonetheless deliver the Goods to the Customer and perform the Services for the Customer. The Customer will pay all undisputed sums for the Goods supplied and Services provided pursuant to these Terms and Conditions. The Seller and the Customer agree the Customer is vested with the absolute and unconditional right to withhold payment of any sum or amount otherwise claimed due from the Customer and which the Customer determines is disputed. The Seller shall continue to provide the Goods and perform the Services despite the Customer’s decision to withhold payment for disputed sums or amounts.

On a monthly basis (and no later than forty-five (45) days after the Seller provides any Good or performs any Services), the Seller shall invoice the Customer by sending all invoices via email. Each and every invoice shall contain all pertinent and necessary information required for the Customer to adequately review the Goods provided and the Services completed for which the Seller has submitted an invoice. Prior to the submission of any invoice, the Seller shall ensure an IRS FORM W-9 is on file with the Customer. Should the Seller fail to timely invoice the Customer within the 45-day period set forth above or the end of the Customer’s Fiscal Year in which the Seller provided the Good or performed the Services, whichever occurs later, the Seller irrevocably waives any and all claims for payment resulting from or relating to any invoices which the Seller failed to timely submit as required herein.

10.      Time for Performance. Seller acknowledges and agrees the Customer’s time period(s) for the delivery of the Goods and performance of the Services are essential conditions to the Purchase Order. Accordingly, the Customer reserves the right without liability, in addition to any other right it may have, to terminate these Terms and Conditions on notice to Seller as to Goods not accepted and to Work substitute Goods elsewhere and charge the Seller for any loss incurred, as well as to Services performed incorrectly or in contravention to the Customer’s scheduling requirements.

11.    Termination for Default. When the Seller has not performed or has unsatisfactorily performed the obligations required by these Terms and Conditions, payment shall be withheld in the sole and absolute discretion of the Customer. Failure on the part of the Seller to fulfill Purchase Order obligations shall be considered just cause for termination of the Purchase Order and the Seller shall only be entitled to recover any undisputed costs incurred by the Seller up to the date of termination, and Seller waives any and

all claims for costs resulting from termination (including but not limited to consequential damages, lost profits, demobilization costs, termination costs, etc.). Any termination for default that is later determined to be invalid shall automatically be converted into a termination for convenience.

12.    Termination for Convenience. At any time, the Customer may terminate these Terms and Conditions, in whole or in part, without showing cause upon written notice to the Seller specifying the extent and the effective date of the termination. In connection with such termination, the Customer shall pay Seller, as Seller’s sole and exclusive remedy, a termination payment comprised of any amounts due for the Work the Customer accepted prior to the termination date and Seller’s reasonable and necessary direct costs resulting from the termination which are substantiated by evidence satisfactory to the Customer (and determined in the sole and absolute discretion of the Customer). In no event shall the Seller be entitled to any payment or profit for any Work not accepted by the Customer, nor shall the Seller be entitled to any consequential damages of any type arising from the termination.

13.    Disputes. Any and all disputes arising out of or related to the Purchase Order and these Terms and Conditions shall be resolved only in the courts located in Fresno County, California, the California Court of Appeals or the California Supreme Court, it being agreed Seller does business in Fresno County, California and is subject to jurisdiction of the courts located in Fresno County, California. At the Customer’s sole and exclusive option, for which separate consideration is acknowledged as received, any disputes between the parties shall be resolved by arbitration before the American Arbitration Association in accordance with the applicable rules of the American Arbitration Association, and any judgment or award issued by the arbitrators shall be final and may be entered in any court having jurisdiction thereof. Any arbitration shall occur in Fresno County, California, and the Seller agrees the Customer may join third parties to any arbitration proceeding as the Customer deems fit. The party that initiates any legal action shall pay all arbitration filing fees. In the event the parties are involved in any arbitration or court proceedings arising out of these Terms and Conditions, the Customer shall be entitled to recover all of its actual attorneys’ fees, interest, costs, arbitration fees (including case administration fees and the arbitrator(s) fees), and expert witness fees if the Customer is the prevailing party.

14.    Limitation of Liability. In no event shall the Customer, or any respective director, board member, officer, employee, agent, successor and assign of the Customer, be liable to Seller, or anyone claiming through or related to Seller, whether based on the Purchase Order, tort, negligence, warranty, indemnity, strict liability, delay, error or omission, or otherwise, for any consequential, special, incidental, indirect, punitive, exemplary or multiple damage or damages arising from or in connection with loss of use or loss of revenue or profit, actual or anticipated, increased expense of manufacturing or operation, loss of use, or cost of capitals, and the Seller hereby releases the Customer and the County of Fresno, and any respective director, officer, board member, employee, agent, successor and assign of the Customer and the County of Fresno, from any such liability. The Customer’s total liability to the Seller shall not exceed the Total Purchase Order Amount. Any and all claims and causes of action against the Customer must be commenced within two years of the date of these Terms and Conditions or the Seller will have deemed to irrevocably waived any and all such claims and causes of action.

15.    Retention of Records. The Seller shall retain and maintain any and all records and documents relating to these Terms and Conditions for three years after final payment and shall make them available for inspection and audit by authorized representatives of the Customer. The Customer, or any agent appointed by the Customer, may review and audit the books and records of the Seller in relation to these Terms and Conditions at any time, upon written notice to the Seller. The Seller shall immediately cooperate, in all respects, with any audit request from the Customer.

16.    Force Majeure. The Customer shall not be liable for delaying delivery and/or acceptance of the Goods and Services, for its failure to accept any Goods or Services, or for its failure to perform hereunder or breach hereof due to the following: (i) fire; (ii) explosion; (iii) flood; (iv) riot; (v) strike; (vi) war; (vii) insurrection; (viii) acts of terrorism; (ix) acts of God; (x) regional energy outages; and (xi) other like causes beyond the reasonable control of any party (events (i) through (xi) are hereinafter collectively referred to as “Force Majeure Events”). The Seller shall not be liable for a delay in the performance of one or more of its obligations under the Purchase Order due to Force Majeure Events, but only to the extent and upon conditions that Seller completes all of the following:

(i) the Seller provides written notice to the Customer of the event which seeks relief with all of the following; (ii) the Seller’s written notice conspicuously indicates in the notice’s subject heading “CLAIM FOR FORCE MAJEURE RELIEF”; (iii) the Seller identifies one of the Force Majeure Events set forth herein; and (iv) the Seller’s provides written notice to the Customer not later than seven

(7) business days after the first occurrence of the Force Majeure Events. Under no circumstances shall the Seller be entitled to, and the Seller specifically waives, any additional compensation or costs related to any Force Majeure Events, and the Seller’s sole and exclusive remedy, provided notice was properly and timely provided, is an extension of time to provide the Goods and/or Services.

17.    Insurance and Performance/Payment Bonds. See Attachment X in this document.

18.    Payment Bond. If the Customer directs Seller in writing, the Seller shall deliver to the Customer, by or before the commencement of the Services to be performed herein, and for the full and faithful performance by the Seller of all terms, conditions and covenants of these Terms and Conditions, payment and performance bonds, issued by a surety approved by the Customer, in amounts equal to one-hundred percent (100%) of the value of the Total Purchase Order Amount, or any lesser amount that the Customer may require from time to time. Bonds shall be on the AIA 311 Form.

 

18.    Entire Agreement. These Terms and Conditions form the entire understanding between the Customer and Seller with respect to the Work, and supersede all prior representations or agreements, whether written or oral. The Seller warrants it has not relied upon any representation of the Customer in entering these Terms and Conditions. The Seller further warrants it has, prior to entering into these Terms and Conditions, done all of the following: (i) carefully reviewed all areas where the Work is to be performed; (ii) considered all conditions of any type affecting or relating to the Goods and/or Services; and (iii) concluded it can deliver the Goods and perform the Services within the time period specified by the Customer. The Seller waives any all claims for conditions which it should have or could have reasonably been aware of at the time the Purchase Order was executed. No oral agreements, representations, course of conduct or dealings, or usage of trade shall be relevant to supplement, explain, contradict or vary in any way, any provision contained herein or any express or implied warranties of the Seller.

19.    Assignment. Seller may not assign or pledge these Terms and Conditions without the express written consent of the Customer, by and through the Chief Executive Officer. With notice, the Customer may assign these Terms and Conditions.

20.    Interpretation. Wherever possible, each provision of the Purchase Order shall be interpreted in such a manner as to be effective and valid under the laws of the State of California, but if any provision of these Terms and Conditions shall be prohibited or invalid under such law, said provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of the Purchase Order. The Customer and Seller agree these Terms and Conditions are the byproduct of joint negotiations between the parties, and irrespective of any rule of construction, these Terms and Conditions shall be construed as if both parties drafted these Terms and Conditions. Additionally, capitalized terms not defined herein shall have the meanings given them in the Customer’s Procurement and Contracting Ordinance.

21.    Waiver. Any failure of the Customer to, at any time, enforce or require strict compliance with and performance of the Seller of any of its obligations under the Purchase Order shall not constitute a waiver of the Customer of a breach of any such term or conditions or any other breaches, or the right of the Customer to avail itself of the remedies it may have for any such breach, and no waiver shall in any event be effective unless in writing and signed by the Customer. The remedies provided to the Customer in these Terms and Conditions are not exclusive, and shall not otherwise limit the Customer’s rights.

22.    Headings. The paragraph headings in these Terms and Conditions are inserted for convenience only and shall not be construed to be either limit or modify the scope of any of the terms and conditions herein.

23.    Independent Seller. The Seller is an independent Seller to the Customer. The Seller shall be solely responsible for the means and methods associated with the Work. No direction or directive from the Customer shall relieve the Seller of its sole and absolute responsibility for the means and methods.

24.    Notices. All notices required or related to these Terms and Conditions shall be sent certified mail/return receipt requested or via facsimile and email to the addresses and recipients listed on the Purchase Order.

25.    Federal Government Agreement. This Purchase and these Terms and Conditions shall be subordinate to the terms, conditions, and covenants of any existing or future agreements between the Customer and the United States of America relative to the operation and maintenance of the Seller, the execution of which has been or may be required as a condition precedent to the expenditure of federal funds for the development of the Seller.

26.    Civil Rights - General. The Seller agrees that it will comply with pertinent statutes, Federal Executive Orders and such rules as are promulgated to ensure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or handicap be excluded from participating in any activity conducted with or benefiting from Federal assistance.

27.    Civil Rights – Title VI. During its performance under these Terms and Conditions, the Seller, for itself, its assignees, and successors in interest agrees as follows:

A.     Compliance with Regulations: The Seller (inclusive of consultants) will comply with the Federal Title VI List of Pertinent Nondiscrimination Statutes and Authorities, as they may be amended from time to time (the “Regulations”), which are herein incorporated by reference and made a part of these Terms and Conditions.

B.     Non-discrimination: The Seller, with regard to the work performed by it under these Terms and Conditions, will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The Seller will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR part 21.

C.     Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation made by the Seller for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the Seller of the Seller’s obligations under this contract and Title VI of the Civil Rights Act and other federal rights civil rights statutes (together, the “Acts”) and the Regulations relative to Non-discrimination on the grounds of race, color, or national origin.

D.  Information and Reports: The Seller will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the Customer or the Federal Aviation Administration to be pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish the information, the Seller will so certify to the Customer or the Federal Aviation Administration, as appropriate, and will set forth what efforts it has made to obtain the information.

E.  Sanctions for Noncompliance: In the event of the Seller’s noncompliance with the non-discrimination provisions of this contract, the Customer will impose such contract sanctions as it or the Federal Aviation Administration may determine to be appropriate, including, but not limited to:

a.   Withholding payments to the Seller under these Terms and Conditions until the Seller complies; and

b.   Cancelling, terminating, or suspending a contract, in whole or in part.

F.  Incorporation of Provisions: The Seller will include the provisions of paragraphs A through F in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The Seller will take action with respect to any subcontract or procurement as the Customer or the Federal Aviation Administration may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the Seller becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the Seller may request the Customer to enter into any litigation to protect the interests of the Customer. In addition, the Seller may request the United States to enter into the litigation to protect the interests of the United States.

28.    National Emergency. All provisions of this Purchase Order and these Terms and Conditions shall be subordinate to the rights of the United States of America to lease or otherwise assume control over the Seller or any part thereof during time of war or national emergency for military or naval use, and provisions of these Terms and Conditions inconsistent with the rights of the United States of America shall be suspended thereby.