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Term & Conditions

MASTER CUSTOMER AGREEMENT

 

 

This Master Customer Agreement was last edited 1-17-2017 and is in effect between CPI Technologies and its customers.

 

 

CPI Technologies, Inc.

“CPI”

6949 Vista Drive

West Des Moines, IA  50266

 

 

This Master Customer Agreement includes the attached General Terms and Conditions (the “Terms and Conditions”), any [project agreements/schedules or orders] separately executed by the parties (the “Project Agreement(s)”), and any attachments or exhibits thereto or terms or conditions referenced therein, each of which is incorporated herein by this reference (collectively, the “Agreement”).  The Agreement sets forth the terms and conditions under which Customer may obtain certain products and services from CPI.  The Agreement also sets forth terms and conditions under which Customer may purchase certain consulting and development services from CPI pursuant to separate, mutually executed statements of work (the “Statements(s) of Work”) as may from time to time be issued hereunder.

 

Unless individually agreed upon in writing between CPI and a customer, both parties agree to the terms of this MCA.

 

 

 

TERMS AND CONDITIONS FOR CPI TECHNOLOGIES, INC. PRODUCTS AND SERVICES

1. Equipment and Services.

1.1 Equipment.  CPI shall provide the equipment, materials, parts, components and peripheral equipment set forth in a Project Agreement (“Equipment”) in accordance with these Terms and Conditions and the terms and conditions of the applicable Project Agreement.

 

1.2 Services.

Implementation Services. Implementation Services, if any, will be identified on the applicable SOW or Project Agreement, and are further described in, and will be performed by CPI in accordance with, the CPI Implementation Services Guide.  Customer acknowledges and agrees that Customer is responsible for, and the Implementation Services are conditioned upon, Customer’s provision of the required Customer resources and performance of the Customer responsibilities as described in the CPI Implementation Services Guide.  CPI may change the Implementation Services and associated fees to reflect additional costs to CPI caused by Customer’s delay in complying with the foregoing implementation obligations or an incorrect implementation assumption set forth in an SOW or Project Agreement. If Customer does not purchase Implementation Services, then CPI will have no obligation to implement such Equipment.   CPI will not grant any credits, refunds, or rights of exchange for Equipment that is not implemented.

Support and Professional Services. To the extent purchased by Customer pursuant to an SOW or Project Agreement, CPI will provide Support Services to Customer in accordance with the CPI Support Guide. Any Professional Services to be provided by CPI will be set forth in, and shall be subject to, an SOW or Project Agreement.

Scope Change. All changes in the scope of Services will be made in accordance with the Change Control Process. The “Change Control Process” is as follows: CPI will prepare a written proposal for change(s) to the scope of any Services. If Customer agrees to such proposal, then the parties hereto will execute a written amendment to the SOW or Project Agreement documenting such change(s). If Customer does not agree to such proposal, or the parties hereto otherwise fail to execute the amendment, then such change(s) will not take effect.

Suspension of Services. CPI reserves the right to suspend the provision of any Services (i) as provided in Section 2.2 of this Agreement (with respect to overdue payments), (ii) if Customer is otherwise in breach of this Agreement or (iii) if such suspension is necessary to comply with any applicable law or order of any governmental authority.

 

1.3 Warranties.

 

Equipment. CPI shall provide to Customer the assignable manufacturers' warranties applicable to such Equipment upon installation of the Equipment. CPI does not provide any separate warranty with respect to the Equipment. All Equipment warranties are subject to, and limited by, the terms and conditions imposed by the written warranties extended by the respective manufacturers of the Equipment.

 

Services.  CPI warrants for a period of 365 days commencing on the effective date set forth in the SOW or the contract date, that (i) any Implementation Services purchased by Customer have been performed in substantial conformance with the CPI Best Practices and (ii) any Professional Services purchased by Customer have been performed in substantial conformance with the express specifications set forth in the SOW or Project Agreement for such Professional Services. To the extent Customer purchases support services, CPI will provide the Support Services in accordance with the CPI Service Level Agreement for the period of time for which Support Services have been purchased and paid.  CPI shall be relieved of all obligations and liability with respect to this limited warranty if Customer fails to report any noncompliance with this limited warranty to CPI in writing within twenty (20) days after such noncompliance is discovered or could have been discovered.

 

Software. any software licensed, warranted as part of the equipment and services

 

Repair, Replacement, Re-performance. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR CPI’S BREACH OF ANY OF CPI’S WARRANTIES WILL BE THE RE-PERFORMANCE BY CPI OF THE NONCONFORMING SERVICE.  CPI WILL ASSIST CUSTOMER IN OBTAINING REPAIRED EQUIPMENT OR REPLACEMENTS FOR EQUIPMENT IN ACCORDANCE WITH THE MANUFACTURERS’ WARRANTIES FOR THE APPLICABLE EQUIPMENT.

 

Limitation. THE WARRANTIES IN THIS SECTION 1.3 ARE IN LIEU OF, AND CPI HEREBY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  CPI DOES NOT WARRANT THAT THE EQUIPMENT OR SERVICES WILL YIELD ANY PARTICULAR BUSINESS OR FINANCIAL RESULT OR THAT THE EQUIPMENT OR SERVICES WILL BE PERFORMED WITHOUT ERROR OR INTERRUPTION.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CPI OR ITS EMPLOYEES, OFFICERS, DIRECTORS, CONTRACTORS, DISTRIBUTORS OR AGENTS, SHALL INCREASE THE SCOPE OF THE EXPRESS WARRANTIES STATED ABOVE, OR CREATE ANY NEW REPRESENTATIONS, WARRANTIES OR CONDITIONS.

 

1.4Customer Responsibilities.  CPI’s provision of Equipment and Services is dependent on Customer fully performing any Customer responsibilities identified in this Agreement (including all support guides). Customer shall be responsible for all of Customer’s employees’ and agents’ compliance with the terms and conditions of this Agreement.

Customer represents and warrants that any premises owned, leased or controlled by Customer on which CPI performs any of the Services shall (i) be in compliance with all applicable laws, rules and regulations, (ii) be safe and non-hazardous, and (iii) not contain, present or expose any CPI personnel to unsafe or hazardous materials or conditions.

 

2. Fees and Payment.

 

2.1 Fees and Payment.  Customer agrees to pay all fees specified in the relevant SOW or Project Agreement.  The fees set forth in each SOW and Project Agreement are non-cancelable and non-refundable. Fees are due [ten (10)] days from the execution of the SOW or Project Agreement or, with respect to fees due after execution of the SOW or the Project Agreement, the invoice date for such fees.  Customer agrees to provide CPI with complete and accurate billing and contact information and to notify CPI of any changes to such information.

 

2.2 Payments Past Due.  Overdue amounts shall accrue interest at a rate of one-and-one-half percent (1.5%) per month, or the maximum rate permitted by applicable law, whichever is less.  If any charge owing by Customer to CPI is thirty (30) days or more overdue, CPI may, without limiting its other right and remedies, suspend access to the Services until such amounts are paid in full. 

 

2.3 Taxes.  Fees specified in quotes or SOWs or Project Agreements do not include any Taxes, and Customer is responsible for payment and reimbursement of all Taxes associated with its purchases hereunder, excluding any Taxes based on CPI’s net income.         

2.4 Renewal Fees. All fees required for a Renewal Term will be invoiced in advance prior to expiration of the then-current Initial Term or Renewal Term, as applicable. Fees for any Renewal Terms shall be set at the then-current CPI pricing, unless otherwise stated on the SOW or Project Agreement.

  1. Term and Termination.

 

  1. Term.  This Agreement commences on the Effective Date and continues until all SOWs and Project Agreements have expired or been terminated. An SOW or Project Agreement commences on the effective date of such SOW or Project Agreement and continues for the Initial Term specified in such SOW or Project Agreement and any agreed upon Renewal Term thereafter. 

 

  1. Termination by Customer or CPI.  Either party hereto may terminate an SOW or Project Agreement prior to the end of the then-current Initial Term or Renewal Term of such SOW or Project Agreement if the other party hereto: (i) materially breaches its obligations hereunder and, where such breach is curable, such breach remains uncured for thirty (30) days following written notice of the breach, or (ii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. CPI’s rights to suspend Services as provided under this Agreement are in addition to and not in lieu of CPI’s termination rights hereunder.

 

  1. Effect of Termination.  No refunds of payments will be made upon termination of this Agreement or any SOW or Project Agreement, unless termination of this Agreement is a result of a breach by CPI under Section 3.2, in which case Customer will be entitled only to a refund of the pro rata portion of fees associated with the remainder of the then-current Initial Term or Renewal Term, as applicable, of the relevant SOW or Project Agreement.  In no event shall any termination relieve Customer of the obligation to pay any fees payable to CPI for the period prior to the effective date of termination.

 

  1. Obligations upon Termination or Expiration. Upon the termination or expiration of an SOW or Project Agreement, Customer will promptly (a) cease using all Services, (b) return all equipment unless fully paid for, and (c) deliver to CPI written certification of an officer of Customer that Customer has complied with its obligations under this Section.

 

 

  1. Confidentiality.

    1. Confidentiality.  The parties hereto acknowledge that in the course of performing their respective obligations under this Agreement, each may receive Confidential Information.  Each party hereto covenants and agrees that neither it nor its agents, employees, officers, directors or representatives will disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (a) to those employees, representatives, or contractors of the Receiving Party who require access to the Confidential Information to exercise its rights under this Agreement and who are bound not to disclose third-party confidential or proprietary information disclosed to such party, or (b) as such disclosure may be required by law or governmental regulation. Nothing in this Agreement will prohibit or limit the Receiving Party’s use of information: (i) previously known to it without obligation of confidence, (ii) independently developed by or for it without use of or access to the Disclosing Party’s Confidential Information, (iii) acquired by it from a third party that is not under an obligation of confidence with respect to such information, or (iv) that is or becomes publicly available through no breach of this Agreement. The Receiving Party acknowledges the irreparable harm that improper disclosure of Confidential Information may cause; therefore, the injured party is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section. 

  2. Limitation of Liability. CPI’s LIABILITY IN CONNECTION WITH THE EQUIPMENT OR SERVICES PROVIDED HEREUNDER, OR ANY OTHER MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF CPI IN THE PERFORMANCE HEREOF SHALL not EXCEED THE FEE THAT CUSTOMER ACTUALLY PAID TO CPI FOR THE EQUIPMENT OR SERVICES GIVING RISE TO THE LIABILITY DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM IS MADE. 

REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL CPI BE LIABLE TO CUSTOMER OR ANY OTHER PERSON WHATSOEVER FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT CPI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. 

CUSTOMER ACKNOWLEDGES THAT CPI HAS SET ITS FEES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES HERETO. 

ANY CLAIM OR COUNTERCLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE ACTIONS OF THE PARTIES HERETO IN THE PERFORMANCE HEREOF must be brought no later than one (1) year after it has accrued, or the claim or counterclaim will be waived, lost and forever barred.

  1. General.

    1. Assignment; Parties in Interest.  Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of CPI. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties hereto, and their respective successors and permitted assigns. Any attempted assignment in breach of this Section 6.1 shall be void. There are no third party beneficiaries to this Agreement.

    2. Nonsolicitation.  During the Term and for a period of one (1) year after the expiration of the Term, the parties hereto agree that each will not, directly or indirectly, hire, employ, retain, offer to employ or retain, or solicit the employment or retention of, any individual that was employed by the other party during the Term, nor will either party attempt to do any of the foregoing.  In the event either party breaches this provision, the parties agree that it would be difficult to establish the precise amount of damages incurred as a result of such conduct and, therefore, the parties agree that immediately upon hiring or retaining such individual, the party hiring or retaining such individual shall pay the other party an amount equal to 50% of the gross annual salary or wages paid to the individual in question during the twelve (12) month period immediately preceding the termination of such individual’s employment.

    3. Relationship of the Parties.  CPI and Customer are independent entities, and nothing in this Agreement or any attachment hereto will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.

    4. Collection Costs. Customer agrees to pay all costs incurred by CPI to collect any amounts due to CPI hereunder, including, without limitation, legal fees and expenses, court costs, and collection service costs.

    5. Manner of Giving Notice.  Notices regarding this Agreement shall be in writing and addressed to the parties as provided on the signature page to the Master Customer Agreement.

    6. Force Majeure.  Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such party's reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party's employees), service disruptions involving hardware, software or power systems not within such party's reasonable control, and denial of service attacks.

    7. Entire Agreement.  This Agreement (including any SOW or Project Agreement and the applicable guides, URLs and services agreements referenced herein) represents the entire agreement of the parties hereto and supersedes all prior discussions, emails, and/or agreements including requests for proposals, between the parties hereto and is intended to be the final expression of their Agreement.  To the extent there is a conflict between this Agreement and any additional or inconsistent terms, including any pre-printed terms on a customer purchase order, the terms of this Agreement shall prevail, unless expressly stated otherwise. Notwithstanding any language to the contrary therein, no terms stated in a purchase order or in any other order document shall be incorporated into this Agreement, and all such terms shall be void.  No failure or delay in exercising any right hereunder shall constitute a waiver of such right. This Agreement may not be modified or altered except by written instrument, and no amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed (either manually or electronically) by an authorized representative of Customer and CPI.  Notwithstanding the foregoing, CPI may amend or restate the CPI Service Level Agreement, CPI Implementation Services Guide and the CPI Support Guide at any time by providing an e-mail notice to Customer that (i) contains such amended or restated document as an attachment, (ii) provides access to such amended or restated document as a link, or (iii) otherwise notifies Customer of the URL or other location where such amended or restated document can be viewed or retrieved.

    8. Severability. In the event any provision of this Agreement is held invalid, illegal or unenforceable, in whole or in part, the remaining provisions of this Agreement shall not be affected thereby and shall continue to be valid and enforceable.  In the event any provision of this Agreement is held to be unenforceable as written, but enforceable if modified, then such provision shall be deemed to be amended to such extent as shall be necessary for such provision to be enforceable and it shall be enforced to that extent. 

    9. Survival.  The provisions of this Agreement that, by their terms, are to survive the termination or expiration of this Agreement shall survive the termination or expiration of this Agreement.  Without limiting the generality of the foregoing, the following terms shall survive the termination or expiration of this Agreement.

    10. Electronic Signatures; Counterparts.  This Agreement may be executed or altered in counterparts and/or by facsimile or electronic signature and if so executed shall be equally binding as an original copy of this Agreement in ink by both parties. Without individual modification, this agreement, as posted on CPI’s website is binding.

    11. Choice of Law and Jurisdiction.  This Agreement will be governed by and construed in accordance with the laws of the State of Iowa, excluding its conflicts of law provisions. Each of the parties hereto hereby irrevocably submits to the exclusive jurisdiction of any United States District Court or Iowa District Court sitting in Des Moines, Iowa in any action or proceeding arising out of or relating to this Agreement, and each party hereto hereby irrevocably agrees that all claims in respect of such action or proceeding shall be heard and determined in either of such courts.  Each of the parties hereto irrevocably waives any objection, including without limitation, any objection on the grounds of forum nonconveniens, which it may now or hereafter have to the bringing of any such action or proceedings in such respective jurisdictions.  In addition, the parties hereto agree that neither of them shall commence any action arising out of or relating to this Agreement in any court other than the United States District Court or the Iowa District Court sitting in Des Moines, Iowa.

    12. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF THE PARTIES HERETO IN THE PERFORMANCE OR ENFORCEMENT HEREOF.

  2. Definitions.

    1. “Confidential Information” means information that one party hereto (the “Disclosing Party”) provides to the other party hereto (“Receiving Party”) pursuant to this Agreement that is identified in writing at the time of disclosure as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.

    2.  “Implementation Services” means the implementation services listed in an SOW or Project Agreement and to be provided by CPI to Customer in accordance with the CPI’s best practices.

    3. “Initial Term” means with respect to a given SOW or Project Agreement the period of time identified in the SOW or Project Agreement as the “Initial Term.”

    4. “Professional Services” means any consulting, manufacturer/vendor management, programming or other professional services that CPI provides to Customer pursuant to an SOW or Project Agreement.

    5. “Services” means the Support Services, Implementation Services, Professional Services and/or any other services that CPI provides to Customer pursuant to an SOW or Project Agreement.

    6. “Support Services” means the support services as described in the CPI Support Guide.

    7. “Taxes” means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including VAT (subject to reverse charge), GST (subject to reverse charge), excise, sales, use or withholding taxes.

    8. “Term” means the term of this Agreement, or the Initial Term and all Renewal Terms of an SOW or Project Agreement, as the context requires.