TERMS & CONDITIONS OF SALE

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Subject to the terms of any other applicable written agreement you (“you”) have with Precisional, Precisional’s sale of Products and provision of Software are governed by these terms and conditions of sale (“Terms”). These Terms include the Basic Order Terms (defined below) specified on an order accepted by us. “Precisional”, “we” or “us” means Precisional LLC or its affiliate identified on our order acknowledgment. Every order you place with us is conditioned upon and confirms your acceptance of these Terms. Any contrary terms or conditions appearing on your orders or associated purchase documentation will be of no effect. No waiver, modification, or addition to these Terms, or any assignment of your rights or obligations under them is valid or binding on us unless in writing and signed by our authorized representative. These Terms and the other applicable agreements you enter into with Precisional constitute the entire agreement between you and Precisional for your purchase and use of Products and Software. Each accepted order will be interpreted as a single set of Terms, independent of other orders.

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1. Definitions. “Products” means hardware products provided hereunder. “Software” means any software, library, utility, tool, or other computer or program code, in object (binary) or source-code form, as well as the related documentation, provided by Precisional to you. Software includes Product firmware, software locally installed on your systems and software accessed by you through the Internet or other remote means (such as websites, portals, software-as-a-service (“SaaS”) and “cloud-based” solutions). “Services” means any services provided by Precisional as described in one or more Service Agreements. “Service Agreements” are service contracts such as for support & maintenance or professional services, “Statements of Work,” and any other such mutually agreed upon documents. These Terms do not apply to Service Agreements which have their own terms and conditions.

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2. General.

2.1  Quotes, Validity of Orders: Our quotations are non-binding unless otherwise expressly stipulated in writing. Orders are accepted as valid and binding only when confirmed by us in writing. Orders cannot be canceled for any reason without our prior written consent.

2.2  Basic Order Terms: All orders must include the following information: (i) the Products and Software ordered and quantities, (ii) Precisional part number(s), (iii) prices, and (iv) delivery instructions, (collectively, “Basic Order Terms”).  All Basic Order Terms are fixed and final upon our acceptance of the order.

2.3  Software Licenses: All Software is licensed or provided as a service and is not sold.  Software is subject to the separate agreements provided by Precisional in connection with the Software, including but not limited to any software licenses, product guides, operating manuals or other documentation (such as an End User License Agreement (“EULA”), Terms of Use or Terms of Service) (collectively, “User Agreements”). You agree that you will be bound by such User Agreements. If there is a conflict or inconsistency between these Terms and those of a User Agreement, the terms of the User Agreement will control. If a User Agreement or other license terms do not accompany Software included with a Product or Service, then Precisional hereby grants you a personal, non-exclusive, revocable, non-assignable right to access and use such Software solely as necessary for you to enjoy the benefit of the Product or Service. Nothing in these Terms shall be construed to grant any rights or license to use any Software in any manner or for any purpose not expressly permitted by the applicable User Agreement.

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3. Delivery.

3.1  Delivery time: Delivery times are established when Precisional accepts your order in writing.  We will use commercially reasonable efforts to meet your requested delivery dates, unless you are in default under these Terms or our performance is otherwise excused.  We are not liable for late or delayed delivery.  Late delivery is not a basis for your cancellation of any order.

3.2  Delivery terms: Title and risk of loss or damage to Products passes to you when we deliver the Products to the shipping carrier (“Delivery”). Unless otherwise agreed, we will deliver the Product freight prepaid, provided that you pay or reimburse us for all applicable costs of carriage, freight, insurance (if applicable), taxes, duty and other related shipping charges. We have the right to make partial deliveries. Software may be delivered electronically at Precisional’s option.  Title to the Software will remain with Precisional or its licensors.

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4. Acceptance, Inspection, Notice of Nonconformance:

4.1  Your acceptance of ordered Products is deemed to occur upon our Delivery of the Products to the shipping carrier: Your acceptance of ordered Software is deemed to occur when the Software is activated or otherwise made available for your access or use, whichever date is earlier. You are responsible for giving prompt written notice of identified damage or nonconformance of Products. You must inspect the condition of the packaging and the Products upon receipt and indicate any evident damage to the carrier on the delivery note, have the carrier’s agent sign the document and, within two (2) days of receipt of the damaged or non-conforming Products, send all documents by e-mail or fax to our facility from which shipment took place, together with the carrier’s references. Concealed Product damage claims must be made by you to the carrier directly and you must also provide us with written notice and a copy of any such claim within 10 days of receipt of the affected Products. Likewise you must notify us within 10 days of receipt of incorrect Products. If you retain the Product without giving notice within the designated notice period, you will be deemed to have waived your right to reject the Product.

4.2  If you cancel an accepted Product order within 10 days prior to shipment or reject conforming Products received under an accepted order, we are entitled to claim reasonable compensation for restocking and other expenses actually incurred.

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5. Return of Product: All Product returns are subject to our prior written consent and must comply with our product return (RMA) procedures then in effect. Before returning or exchanging a Product, you must contact us directly to obtain an authorization number to include with your return. You must return Products to us in their original or equivalent packaging, and you are responsible for risk of loss, as well as shipping fees back to Precisional. Products received but not eligible for return will be sent back to you freight collect.  For approved returns you will receive credit equal to the lesser of the Product’s invoice price or its current replacement value, less any applicable charges or fees.

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6. Pricing, Terms of Payment, Taxes:

6.1  Unless we state otherwise in writing, payment terms are net 30 days from our invoice date. You will make payment in the currency indicated on the invoice. We are entitled to offset payments against prior debt balances in your account. Products, Software or Services purchased or licensed under our United States General Services Administration (“GSA”) Schedules are subject to all of the pricing and other terms and conditions described in the applicable GSA Schedule.

6.2  We have the continuing right to review your credit and change your payment terms, and may at any time demand advance payment, satisfactory security (such as, but not limited to, a confirmed, irrevocable letter of credit acceptable to us), or a guarantee of prompt payment prior to shipment or service activation.

6.3  We reserve the right to charge interest on all overdue sums owing to us under these Terms at the rate of 1.5% per month (or the highest legal limit if lower than said amount), measured from the date the sums in question became payable to the date on which we receive full payment.

6.4  You grant us a purchase money security interest in each Product delivered to you until payment is made in full to us for such Products. Upon request, you will cooperate with us in perfecting any such security interest.

6.5  You are liable for any costs incurred by us if you change or cancel any order, and for all costs of collection of past due amounts (including attorneys’ fees).

6.6  Our stated prices for Products and Software do not include applicable sales taxes, Value Added Tax, export or import charges, transportation or insurance charges, customs and duty fees, personal property taxes or similar charges, all of which are your responsibility to pay. Unless you provide us with direct payment authority or an exemption certificate valid in the jurisdiction to which the Product will be delivered, you shall pay us all taxes and governmental fees we are required to collect or pay upon sale or delivery of the Product.

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7. Limited Warranty:

7.1  Products and Software: Unless (i) the limited warranty included with a Product or (ii) the User Agreement accompanying any Software grants you different rights or disclaims all warranties, we warrant to you, and only to you, as applicable, (a) that our Products are designed and manufactured to conform to our specifications and will be free from defects in material and workmanship for a period of 12 months from date of Delivery, and (b) that our Software will substantially conform to the functional specifications and current documentation provided by Precisional for a period of 90 days. During the warranty period, our liability and your exclusive remedy is limited, at Precisional’s option, to replacing, repairing, correcting, or issuing credit for any Product or Software subject to the warranty in this Section 7.1, which upon inspection we determine is non-conforming.

7.2  Warranty Exclusions: The foregoing limited warranty only applies if and to the extent that (a) the Product or Software is properly and correctly installed, configured, interfaced, main­tained, stored, and operated in accordance with our applicable documentation and specifications, and (b) the Product or Software is not modified or misused. This limited warranty does not apply to, and we are not responsible for defects or performance problems resulting from (i) the combination or use of the Product or Software with hardware or software products, information, data, systems, interfaces or devices not made, supplied or specified by us; (ii) operating the Product or Software under any specification other than, or in addition to, our standard specifications for them; (iii) the unauthorized installation, modification, repair or use of the Product or Software; (iv) damage caused by accident, lightning or other electrical discharge, fresh or salt water immersion or spray (outside Product specifications); or exposure to environmental conditions for which the Product or Software is not intended; (v) normal wear and tear on consumable parts (e.g., batteries) or (vi) cosmetic damage. We do not warrant or guarantee the results obtained through the use of the Product or Software. WE MAKE NO WARRANTIES UNDER THESE TERMS WITH RESPECT TO SERVICES, WHICH IF PROVIDED HEREUNDER ARE PROVIDED “AS-IS”.

NOTICE REGARDING PRODUCTS EQUIPPED WITH SATELLITE OR WIRELESS TECHNOLOGY. Your use of certain Products and Software is dependent on the availability and coverage of wireless networks, telecommunications networks, satellite positioning systems and the Internet, which involve facilities owned and operated by third parties. WE ARE NOT RESPONSIBLE FOR THE OPERATION, AVAILABILITY OR FAILURE OF SUCH THIRD PARTY SYSTEMS OR FACILITIES.

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7.3  WARRANTY DISCLAIMER: THE FOREGOING LIMITED WARRANTY TERMS ARE IN LIEU OF ALL OBLIGATIONS OR LIABILITIES ON OUR PART ARISING OUT OF, OR IN CONNECTION WITH, OUR PRODUCTS AND SOFTWARE AND STATE OUR ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDIES RELATING TO THEM. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS, THE PRODUCTS AND SOFTWARE AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED “AS-IS” AND WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND, EITHER BY US OR ANYONE WHO HAS BEEN INVOLVED IN ITS CREATION, PRODUCTION, INSTALLATION, OR DISTRI­BUTION, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NONINFRINGEMENT. ADDITIONALLY, WE MAKE NO EXPRESS OR IMPLIED WARRANTY THAT SOFTWARE PROVIDED TO YOU IN CONNECTION WITH THESE TERMS, IS OR WILL BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, FREE OF ERRORS, OR FREE OF VIRUSES, OR OTHER MALWARE OR PROGRAM LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE ABOVE LIMITATION MAY NOT APPLY OR FULLY APPLY TO YOU. IF YOU ARE A RESELLER OF THE PRODUCTS OR SOFTWARE YOU SHALL NOT MAKE OR PASS ON TO YOUR OWN CUSTOMERS ANY WARRANTY, CONDITION OR REPRESENTATION ON BEHALF OF US OTHER THAN, OR INCONSISTENT WITH, THE APPLICABLE LIMITED WARRANTY IN THE PRODUCTS AND SOFTWARE PROVIDED TO YOU.

PLEASE NOTE: THE ABOVE LIMITED WARRANTY PROVISIONS WILL NOT APPLY TO PRODUCTS YOU PURCHASE IN THOSE JURISDICTIONS IN WHICH PRODUCT WARRANTIES ARE THE RESPONSIBILITY OF THE LOCAL DISTRIBUTOR FROM WHOM THE PRODUCTS ARE ACQUIRED.  IN SUCH CASE, PLEASE CONTACT YOUR PRECISIONAL PRODUCT DEALER FOR APPLICABLE WARRANTY INFORMATION.

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8. Warranty Procedures:

8.1  Warranty Repair Procedure: If any Product fails during the warranty period for reasons covered by our limited warranty and you notify us of such failure during the warranty period, we will at our option repair or replace a nonconforming Product with new, equivalent to new, or reconditioned parts or Product or, if either of the foregoing is commercially impractical in Precisional’s determination, refund the Product purchase price you paid (excluding separate costs of installation, if any) upon your return of the Product in accordance with our product return procedures as referenced in Section 5 above. Any repaired or replaced Product will be warranted for a period of 30 days or the remainder of the original warranty period, whichever is longer. We may, in our sole discretion, arrange for fulfillment of our warranty obligations through a Precisional affiliate, authorized distributor or an authorized warranty service center.

8.2  Determination of Warranty Applicability: We reserve the right to refuse warranty services if the Product or Software date of purchase cannot be proven, if a claim is made outside the warranty period or if a claim is excluded under Section 7.2 above. Following our examination of your claim, we will notify you of warranty status and the repair cost of any out-of-warranty Product. At such time you must issue a valid purchase order to cover cost of the non-warranted Product repair and return freight, or authorize return shipment of the Product at your expense as-is.

8.3  Not Responsible for Lost Data: We are not responsible for any modification or damage to, or loss of any programs, data, or other information stored on any media or any part of any Product serviced by us, or stored or hosted by us in connection with a Software service we provide, or for the consequence of such damage or loss, (such as business loss in the event of system, program or data failure.) You are solely responsible for backing up data and removing all features, parts, alterations, and attachments not covered by warranty prior to releasing the Product to Precisional for service or seeking Software support. Any Product or Software sent to Precisional for support may be returned to you configured as originally provided to you by Precisional.

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9.LIMITATION OF LIABILITY: OUR ENTIRE LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS IS LIMITED TO THE AMOUNTS YOU ACTUALLY PAID TO US UNDER THE TERMS. FURTHER, NEITHER WE NOR OUR SUPPLIERS ARE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE DAMAGES OR OTHER DAMAGES, OR LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF USE OF THE PRODUCTS OR SOFTWARE OR ANY ASSOCIATED EQUIPMENT, COSTS OF COVER, DOWNTIME AND USER TIME OR FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITIONS, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THE PRODUCTS OR SOFTWARE. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, ANY IMPLIED WARRANTY OF SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE APPLYING TO THE PRODUCTS OR SOFTWARE IS LIMITED IN DURATION TO THE DURATION OF THE WARRANTY SPECIFIED IN SECTION 7, ABOVE. YOU AND WE AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR PRECISIONAL’S SALE OF PRODUCTS TO YOU, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIFIED OTHER DAMAGES, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY, OR MAY NOT FULLY APPLY TO YOU.

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10. Intellectual Property Ownership: You agree that Precisional owns all right, title and interest to all intellectual property and other proprietary rights to documents and materials, calculations, drawings, models, plans, sets of tools, technology, software, designs, engineering details, schematics and similar data relating to or incorporated in the Products and Software and any accompanying documentation or information derived from the foregoing. You shall take reasonable precautions to prevent unauthorized access and use of the Software and documentation by third parties. To the extent permitted by relevant law, you shall not, nor allow any third party to copy, decompile, disassemble or otherwise reverse engineer the Products or Software, or attempt to do so. You are prohibited from, and shall prevent any third party from, removing, covering or altering any of our patent, copyright or trademark notices placed upon, embedded in or displayed by the Products or Software or their packaging and related materials. We reserve all rights in the Products and Software not specifically granted to you under these Terms.

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11. Government End Users-Restricted Rights. The Software and its associated documentation are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212.  Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 12.227.7202-1 through 227.7202-4, all U.S. Government end users acquire the software and documentation with only those rights set forth in the User Agreement for such Software.

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12. Export Control: You may not use or otherwise export or re-export the Products or Software except as authorized by the laws of the jurisdiction in which they were obtained. In particular, but without limitation, the Products and Software may not be exported or re-exported in violation of export laws, including if applicable export or re-export into any US-embargoed countries or to anyone on the US Treasury Department’s list of Specially Designated Nationals or the US Department of Commerce Denied Person’s List or Entity List. You represent that you are not located in any country or on any list where the provision of Products or Software to you would violate applicable law. You also agree not to use or enable use of them for any purposes prohibited by applicable law or export or re-export any Product or Software with knowledge that it will be used in the design, development, production or use of chemical, biological, nuclear or ballistic weapons. Laws and regulations change frequently. It is your responsibility to know the law pertaining to export/import procedures in the country of destination of the Product and Software. You shall defend, indemnify and hold us harmless against any liability (including attorneys’ fees) arising out of your failure to comply with the terms of this paragraph.

13. Default: We reserve the right by written notice of default to cancel or indefinitely suspend an accepted order and to refuse additional orders if: (i) you default in performing your obligations under these Terms, (ii) you cease business operations or enter into any bankruptcy, insolvency, receivership or like proceeding not dismissed within 30 days, or assign your assets for the benefit of creditors, or (iii) when obtaining third-party financing in connection with your Product purchase(s) you fail to do so in a timely manner on terms satisfactory to us.

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14. Applicable law - Settlement of Disputes:

These Terms and any dispute, claim or controversy arising therefrom shall be governed by the laws of the country, state and province in which we have our principal place of business, namely for Precisional LLC or any affiliated company in the United States the laws of the State of Delaware and applicable United States federal law, without reference to “conflict of laws” principles, unless expressly prohibited by local law. The United Nations Convention on Contracts for the International Sale of Goods will not apply. No dispute or legal action arising under these Terms, may be brought by either party more than one (1) year after such cause of action accrued, except that an action for nonpayment may be brought within two (2) years of the date of the last payment.

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15. Severability: These Terms may be severable and the invalidity, illegality or unenforceability in whole or in part of any provision does not affect the validity of other provisions.

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16. Force Majeure: Neither party will be liable for non-performance (except for payment obligations) due to causes beyond its reasonable control, provided that such party promptly notifies the other in writing of such occurrence and makes its best efforts to promptly eliminate the effect thereof.

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17. Notices: Any notice or other communication given by either party to the other regarding these Terms will be deemed given and served when personally delivered, delivered by reputable international courier requiring signature for receipt, or five (5) business days after mailing (postage prepaid), addressed to the party at its notice address. Either party may change its notice address by written notice to the other. Your notice address will be the address appearing on the accepted purchase order.  Our notice address is: Precisional Inc., Attn: Contracting Supervisor, LLC, 3333 Warrenville Rd, Unit 200, Lisle, IL 60532 USA.

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18. Waste Electrical & Electronic Equipment (WEEE): If the Products are furnished to you as component products on an OEM basis, or for import, resale or distribution to third parties, then you agree that you qualify as, and are deemed the “producer” of all such Products under any laws, regulations or other statutory scheme providing for the marking, collection, recycling, take-back, and/or disposal of electrical and electronic equipment (“WEEE Regulations”) in any jurisdiction whatsoever, (e.g., national laws implementing EU Directive  2012/19 on waste electrical and electronic equipment, recast), and are solely responsible for complying with all such applicable WEEE Regulations in connection with those Products and for all associated costs.

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19. Official Language: The official language of these Terms is English. If there is a conflict between versions of these Terms in any other language, the English language version controls.

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Terms & Conditions for Services

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Subject to the express terms of any other valid agreement you (“Client”) have with Precisional (as defined below), Precisional’s provision of Services (as defined below) are governed by these Terms and Conditions for Services (“Terms”). “Precisional” means Precisional LLC and/or its affiliates identified in the SOW (as defined below). Any contrary or additional terms or conditions appearing on Client orders or associated purchase documentation will be of no effect. Precisional agrees to furnish the Services only upon these Terms. These Terms include the terms and conditions of any orders, quotations, statements of work, scopes of work, or other similar document for the provision of services by Precisional that references these Terms and is accepted by Precisional in writing (collectively referred to herein as the “Scope of Work” or “SOW”). Each accepted SOW will be interpreted as a single set of Terms, independent of other orders and/or SOWs. Precisional quotations are non-binding unless otherwise expressly stipulated in writing. Quotes are accepted as valid and binding only when confirmed by Precisional in writing. Accepted quotations cannot be canceled for any reason without the prior written consent of Precisional.

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1. Services. Precisional agrees to use commercially reasonable efforts to render the Services described in the SOW (the “Services”) by the delivery dates specified therein, if any. Any deliverables provided to Client as part of the Services will be deemed “Deliverables.” The parties may execute additional SOWs describing Services and referencing these Terms.

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2. Changes to Scope of Services. If Client desires changes to a SOW, Client will submit a written request to Precisional detailing the proposed changes. Upon receipt of Client’s request, or if Precisional desires changes to an SOW, Precisional shall prepare an amendment to the SOW, change order, or like document (referred to herein collectively as the “Change Document”) detailing the changes, any fee adjustments required as a result of such changes, any adjustments to the delivery schedule required as a result of such changes, and any other necessary adjustments. If the Change Document is mutually agreed to, both parties will execute it. If Client and Precisional are not able to agree to the terms of the Change Document, the SOW will remain unchanged.

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3. Payment. Unless otherwise specified in the applicable SOW, the following shall apply. Client will pay Precisional its customary rates for Services monthly based upon actual time spent. Client agrees to reimburse Precisional for pre-approved travel, lodging and meal expenses incurred in the course of performing the Services at any location other than Precisional’s site. Precisional will invoice Client for expenses incurred and at Client’s request and expense Precisional will provide copies of receipts for which charges are incurred. All payments are non-refundable and shall be made in U.S. dollars (or such other currency specified in a SOW) within thirty (30) days from the date of Precisional’s invoice. Client will be responsible for all sales, service, and value added taxes, withholdings, duties and levies in connection with the Services (excluding taxes based on the net income or profits of Precisional or any franchise tax imposed on Precisional). Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.

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4. Termination. Either party may terminate these Terms or any SOW if the other party: (a) fails to cure any material breach of these Terms within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such part (and not dismissed within sixty (60) days thereafter). Following termination, Sections 5 (License and Ownership), 7 (Limitation of Remedies and Damages), 8 (Confidential Information), 9 (Client Reference), 10 (Export Compliance) and 11 (General Provisions) will survive. Section 3 (Payment Terms) will survive with respect to payments earned prior to termination.

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5. License and Ownership

5.1 Client Materials. Client agrees to provide Precisional with reasonable access to and a limited right to use Client technical data, computer programs, files, documentation, and/or other materials (“Client Materials”),resources, personnel, equipment or facilities to the extent such access is necessary for the performance of Services. Client will be responsible for, and assumes the risk of any problems resulting from the content, accuracy, completeness, competence or consistency of Client Materials or its personnel. To the extent that Client does not timely provide the access, quality, level of detail and/or scope required for Precisional to perform the Services or deliver the Deliverables, Precisional shall be excused from performance until such items/access are provided or the applicable deficiencies corrected. Client owns and will retain ownership (including all intellectual property rights) in the Client Materials. Client grants to Precisional a royalty-free, non-exclusive license to access and use the Client Materials (including through subcontractors) as required for Precisional’s performance of the Services.

5.2 Deliverables. Subject to Section 5.3 (Assignment of Ownership to Client), Precisional hereby grants Client a perpetual, worldwide, royalty-free, non-exclusive license to use, copy, modify, or develop derivative works of the Deliverables but only for internal purposes and otherwise in accordance with the description of Client’s use and any restrictions set forth below or in the applicable SOW. Precisional owns and will retain ownership (including all intellectual property rights) in and to the Deliverables (excluding any Client Materials) and any modifications, improvements and derivative works thereof (including any such materials to the extent incorporating any ideas, feedback or suggestions of Client (“Feedback”)). Client acknowledges that Precisional is free to exploit, use, license and distribute, any Feedback provided to Precisional as it sees fit, without obligation of compensation or attribution.

5.3 Assignment of Ownership to Client. If the parties have agreed that Precisional will assign ownership of any portion of the Deliverables to Client, the relevant SOW must expressly set forth the terms and conditions regarding such assignment.

5.4 Precisional Product Enhancements and Modifications. Notwithstanding anything in these Terms or any SOW to the contrary, any enhancements or other modifications to any of Precisional’s commercially available products and/or services that are developed by Precisional as part of the Services shall be owned by Precisional and Client shall have no right, title, or interest therein; provided, that if Precisional has granted to Client a license or access to use such commercially available products and/or services under a written agreement, then Client’s rights under such agreement shall also extend and apply to any enhancements and modifications so made by Precisional. Other than Client Materials, Precisional owns all computer programs, utilities and intellectual property which aid Precisional in performing the Services or which are produced as a result of the Services.

5.5 Other Agreements. Precisional and Client may have entered into one or more separate agreements under which Precisional supplies, licenses, or otherwise makes available certain products and/or services to Client, including updates and enhancements to that software. The delivery and use of any such products and/or services is governed by the terms of such other agreement and not these Terms, and even if listed in a SOW such products and/or services shall not be considered a Deliverable hereunder.

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6. Limited Warranty and Disclaimer.

6.1 Precisional will perform the Services and deliver the Deliverables in a professional and workmanlike manner and in compliance in all material respects with all applicable laws, rules, and regulations. Precisional will, as its entire liability and obligation to Client and Client’s sole and exclusive remedy for failure to provide Services or Deliverables meeting this warranty, (a) re-perform the non-conforming Services or (b) re-deliver the non­conforming Deliverables at no additional cost to Client if notified of the non-conformity within thirty (30) days of delivery of the applicable Service or Deliverable, or if Precisional determines such remedies to be impracticable within a reasonable period of time, (c) terminate the applicable Statement of Work and refund the portion of fees attributable to such non-conforming Services or Deliverables.

EXCEPT FOR THE WARRANTY SET FORTH  ABOVE, PRECISIONAL MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES AND DELIVERABLES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

6.2 Construction Model. If the Deliverables include a “Construction Model,” which is a 3D representation of a construction project including, but not limited to, some or all of the following elements: building components, construction equipment, and site components, Client agrees and acknowledges that any Construction Model is developed for the sole use of Client and based on specifications provided by the Client (the “Specifications”). Client will be responsible for, and assumes the risk of, any problems resulting from the content, accuracy, or completeness of the Specifications. The Construction Model will not be used for any project other than as specified by the Statement of Work. If the Construction Model is being used by Client as part of an effort to generate construction documents, as-built construction drawings, or “shop” drawings, Precisional accepts no liability and/or responsibility for such construction documents, as-built construction drawings, or shop drawings. Any use of, or reliance on, a Construction Model by any third party will be at their sole risk and without liability to Precisional. If Client discloses the Construction Model to any third party, Client shall to the fullest extent permitted by law, defend, indemnify and hold harmless Precisional for any suit, claim, action, damage or liability brought against Precisional by any third party arising from the Specifications, construction documents, as-built drawings, shop drawings, or the development, delivery or use of all or any part of the Construction Model by Client or by any such third party. Precisional makes no representations regarding the Construction Model’s compliance with applicable building and construction codes or regulations. The Construction Model does not constitute an approved construction document, as-built drawing or shop drawing. Client will consult with its local building authority to confirm adherence with applicable building codes or regulations. Before beginning construction, Client will have a licensed architect or trade-appropriate engineer sign off on the Construction Model and all construction documents, drawings, Specifications and/or models.

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7. Limitation of Remedies and Damages. NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THE SERVICES REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. IN NO EVENT WILL PRECISIONAL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO PERFORMANCE OF THE SERVICES EXCEED THE NET AMOUNT PRECISIONAL HAS ACTUALLY RECEIVED FROM CLIENT UNDER THE SOW APPLICABLE TO SUCH CLAIM. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT. THIS SECTION 7 DOES NOT APPLY TO EITHER PARTY WITH RESPECT TO ITS BREACH UNDER SECTION 8 (CONFIDENTIAL INFORMATION) OR TO CLIENT WITH RESPECT TO ANY CLAIM ARISING AS A RESULT OF CLIENT’S VIOLATION OF LICENSE RESTRICTIONS APPLICABLE TO THE DELIVERABLES UNDER SECTION 5.2 (DELIVERABLES), OR ITS INDEMNITY OBLIGATIONS UNDER SECTION 6.2 AND 10. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 7

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8. Confidential Information. Each party (“Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software, documentation or technical information provided by Precisional (or its agents) and these Terms and any Quotations, and SOWs will be deemed Confidential Information of Precisional without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

8.1 Exclusions. The Receiving Party’s nondisclosure obligation will not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).

8.2 Use and Protection of Confidential Information. The Receiving Party may use the Confidential Information of the Disclosing Party only in pursuance of its business relationship with the Disclosing Party under these Terms. Except as expressly provided hereunder, the Receiving Party will not disclose Confidential Information of the Disclosing Party to anyone without the Disclosing Party’s prior written consent. The Receiving Party will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of the Disclosing Party’s Confidential Information, including, at a minimum, those measures it takes to protect its own Confidential Information of a similar nature. The Receiving Party will restrict the possession, knowledge and use of the Confidential Information to its employees, contractors, legal and financial advisors who (i) have a need to know such Confidential Information in connection with the parties’ business relationship, and (ii) have executed written nondisclosure agreements obligating them to protect the Confidential Information.

8.3 Use and Protection of Confidential Information. The Receiving Party may use the Confidential Information of the Disclosing Party only in pursuance of its business relationship with the Disclosing Party under these Terms. Except as expressly provided hereunder, the Receiving Party will not disclose Confidential Information of the Disclosing Party to anyone without the Disclosing Party’s prior written consent. The Receiving Party will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of the Disclosing Party’s Confidential Information, including, at a minimum, those measures it takes to protect its own Confidential Information of a similar nature. The Receiving Party will restrict the possession, knowledge and use of the Confidential Information to its employees, contractors, legal and financial advisors who (i) have a need to know such Confidential Information in connection with the parties’ business relationship, and (ii) have executed written nondisclosure agreements obligating them to protect the Confidential Information.

8.4 Legally Required Disclosure. The Receiving Party may disclose Confidential Information to the extent reasonably required to comply with court, administrative, or binding orders of governmental entities, provided that the Receiving Party gives prompt notice to the Disclosing Party of the receipt of the order and cooperates fully in any effort to obtain an order preserving the confidential nature of the Confidential Information.

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9. Client Reference. Client agrees that upon execution of these Terms, Precisional may add Client to Precisional’s publicly disclosed customer list (which may include use of Client’s name and logo in customer lists on Precisional’s website and marketing materials). Except as set forth in this Section 9, neither party may use the other party’s name in advertisements nor otherwise publicly disclose the terms and content of these Terms without the other’s prior written consent.

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10. Export Compliance. Client is responsible for complying with all applicable export and import regulations and obtaining all necessary export and import licenses or permits for the direct or indirect export or import of any Deliverable. Client hereby acknowledges and agrees that Precisional technology, software, products, and/or proprietary information that may be used in the creation of Deliverables and incorporated therein are subject to the U.S. Export Administration Regulations and were exported from the United States, if at all, in accordance with those regulations. Therefore, Client shall comply strictly with all U.S. export control laws and regulations applicable to the Deliverables, and shall not export, re-export, transfer, divert or disclose any such Deliverables, or any direct product thereof, to any destination restricted or prohibited by U.S. export control laws, or to any national or resident thereof. Client will defend, indemnify and hold Precisional harmless against any liability (including attorneys’ fees) arising out of Client’s failure to comply with the terms of this paragraph. Client’s failure to comply with any term of this paragraph will constitute a material breach hereof and entitle Precisional to immediately terminate these Terms and any associated SOW in addition to any other remedy available at law or equity. Client’s obligations under this paragraph will survive the termination of these Terms or any SOW.

 

11. General Provisions

11.1 Governing Law. Unless expressly otherwise set forth in an SOW, these Terms and any dispute, claim or controversy arising therefrom shall be governed by the laws of the applicable location set forth below, unless expressly prohibited by local law, in each case without reference to “conflict of laws” principles:

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Governing Law: Delaware and applicable United States federal law 

Courts having exclusive jurisdiction: Federal and Delaware state courts located in New Castle County, DE

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Any suit or proceeding arising out of or relating to these Terms shall be commenced in such jurisdiction, and each party irrevocably submits to the jurisdiction and venue of such courts. The United Nations Convention on Contracts for the International Sale of Goods will not apply. No dispute or legal action arising under these Terms may be brought by either party more than one (1) year after such cause of action accrued, except that an action for nonpayment may be brought within two (2) years of the date of the applicable invoice.

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11.2 Independent Contractors. Each party is an independent contractor of the other and neither is an employee, agent, partner or joint venturer of the other. Neither party shall voluntarily or involuntarily bind nor attempt to bind the other to any contract or to the performance of any obligation. Neither party may represent to third parties that it has any right to enter into any obligation on the other’s behalf. The parties hereby agree that there are no third party beneficiaries of these Terms.

11.3 Assignment; Binding Effect. Neither party shall assign these Terms without the advance written consent of the other party, except that Precisional may assign these Terms to an affiliate or in the event of a merger, reorganization, acquisition or other transfer of all or substantially all of Precisional’s assets or voting securities. These Terms will otherwise be binding upon and inure to the benefit of the parties and their successors and permitted assigns.

11.4 Notices. Any notice, report, approval or consent which may be or is required to be given under these Terms shall be in writing to the address(es) specified in the SOW, and shall be deemed to have been received: (a) when delivered personally, (b) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (c) one (1) day after having been sent by a commercial overnight carrier with written verification of receipt. Either Party may change its notice address by written notice to the other. In addition, any notice to Precisional shall also include a copy to: Precisional LLC, Attention: Contracting Department, Warrenville Rd, Unit 200, Lisle, IL 60532 USA.

11.5 Force Majeure. Except for payment obligations, neither Party will be liable to the other for failure to perform its obligations to the extent caused by an event beyond the reasonable control of such Party, including, without limitation, government regulations or orders, outbreak of a state of emergency, acts of god, acts of terrorism, blockade, war, warlike hostilities, civil commotion, riots, epidemics, fire, natural disasters, strikes, lockouts, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency, or any other similar cause or causes, provided that, to the extent feasible, the affected party promptly notifies the other of such occurrence and makes its commercially reasonable efforts to eliminate the effect thereof.

11.6 Waivers. Any waiver by either party of any breach of these Terms, whether express or implied, will not constitute a waiver of any other or subsequent breach. No provision of these Terms will be waived by any act, omission or knowledge of a party or its agents or employees except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving party. If any provision of these Terms is adjudicated by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect.

11.7 Headings. The headings contained in these Terms are for reference purposes only and shall not affect in any way the meaning or interpretation of these Terms.

11.8 Entire Agreement. No provision of any purchase order or other business form employed by Client will supersede these Terms, and any such document relating to these Terms shall be for administrative purposes only and shall have no legal effect. Both parties agree that these Terms, together with the SOW, are the complete and exclusive statement of the mutual understanding of the parties, and supersede and cancel all previous written and oral agreements and communications relating to the subject matter of these Terms.

11.9 Official Language. The official language of these Terms is English. If there is a conflict between versions of these Terms in any other language, the English language version controls.

11.10 Amendments. No waiver, modification, or addition to these Terms, or any assignment of Client’s rights or obligations under an SOW shall be valid or binding on Precisional unless in writing and signed by an authorized Precisional representative.

11.11 Independent Activities. Client acknowledges that nothing in these Terms will prohibit Precisional or its affiliates from providing products and services that are similar to or compete with the Services and Deliverables provided that Precisional does not violate any of its confidentiality obligations under these Terms in connection with such activities.

11.12 Order of Precedence. In case of any inconsistency, conflict, or ambiguity among these Terms, an SOW, or any related agreements, the documents shall govern in the following order: (a) these Terms; (b) mutually executed Change Documents to an SOW; (c) the SOW;  and (d) other documents expressly referenced in a Change Document and/or the SOW. Among categories of documents having the same order of precedence, the term or provision that includes the latest date shall control. Information identified in one document and not identified in another shall not be considered a conflict or inconsistency.

11.13 Counterparts. The SOW may be executed in any number of counterparts, each of which will be considered an original and all of which when taken together will constitute a single fully-signed original. Facsimile and other electronic means of signatures on the SOW are binding.