General Terms and Conditions
1. WORKING HOURS
Unless otherwise stated, all labor and services under this Agreement will be
performed during the hours of 8:00 a.m. - 4:30 p.m. local time Monday through
Friday, excluding federal holidays. If for any reason Buyer requests Vindicator
Technologies, Inc. (“Vindicator”) to furnish any such labor or services outside
of the hours of 8:00 a.m. - 4:30 p.m. local time Monday through Friday (or on
federal holidays), any overtime or other additional expense occasioned thereby,
such as repairs or material costs not included in this Agreement, may be billed
to and then must be paid by Buyer.
Vindicator’s pricing excludes all taxes (including but not limited to, sales,
use, excise, value-added, and other similar taxes), duties and charges
(collectively, “Taxes”). Buyer will pay all Taxes resulting from this Agreement
or Vindicator’s performance under this Agreement, whether imposed, levied,
collected, withheld, or assessed now or later. If Vindicator is required to
impose, levy, collect, withhold or assess any Taxes on any transaction under
this Agreement, then in addition to the purchase price, Vindicator will invoice
Buyer for the such Taxes unless at the time of order placement, Buyer furnishes
Vindicator with an exemption certificate or other documentation sufficient to
verify exemption from the Taxes.
If any Taxes are required to be withheld from amounts paid or payable to
Vindicator under this Agreement, (a) such withholding amount will not be
deducted from the amounts due Vindicator as originally priced (b) Buyer will pay
the Taxes on behalf of Vindicator to the relevant taxing authority in accordance
with applicable law, and (c) Buyer will forward to Vindicator within 60 days of
payment proof of Taxes paid sufficient to establish the withholding amount and
In no event will Vindicator be liable for Taxes paid or payable by Buyer.
This clause will survive expiration or any termination of this Agreement.
3. NON-DISCLOSURE AND NON-USE OF PROPRIETARY INFORMATION
“Proprietary Information” means: (1) any information, technical data or
know-how in whatever form, including, but not limited to, documented
information, machine readable or interpreted information, information contained
in physical components, maskworks and artwork, that is clearly identified as
being confidential, proprietary or a trade secret, (2) business related
information including but not limited to pricing, manufacturing, or marketing,
(3) the terms and conditions of any proposed or actual agreement between the
parties or their affiliates, (4) either party’s or its affiliates business
policies, or practices, and (5) the information of others identified as
confidential, proprietary or a trade secret that is received by either party
under an obligation of confidentiality.
The receiving party will keep all Proprietary Information disclosed
confidential for 10 years following the expiration, termination or completion of
the work of this Agreement whichever period is longer. Each party will retain
ownership of its Proprietary Information including, without limitation, all
rights in patents, copyrights, trademarks and trade secrets. No right or license
is granted hereby to either Party or its buyers, employees or agents, expressly
or by implication, with respect to the Proprietary Information or any patent,
patent application or other proprietary right of the other Party,
notwithstanding the expiration of the confidentiality obligations stated in this
clause. Vindicator agrees to use the Proprietary Information of Buyer only to
provide products or services for Buyer from Vindicator and not from any other
source. Buyer agrees that it will not use or disclose Vindicator’s Proprietary
Information for any other purpose.
The receiving Party has no duty to protect information that is: (a) known,
publicly, at the time of disclosure or becomes publicly known through no fault
of recipient, (b) known to recipient at the time of disclosure through no
wrongful act of recipient, (c) received by recipient from a third party without
restrictions similar to those in this clause, or (d) independently developed by
4. INSURANCE OBLIGATIONS
Vindicator will, at its own expense, carry and maintain in force at all times
from the effective date of the Contract through final completion of the work,
the following insurance. It is agreed, however, that Vindicator has the right to
insure or self-insure any of the insurance coverage’s listed below:
General Liability Insurance to include contractual liability and
products/completed operations liability with a minimum combined single limit of
$5,000,000 per occurrence. Such policy will be written on an occurrence form
b. Automobile Liability Insurance with a minimum combined single limit of
$5,000,000. Coverage will include all owned, leased, non-owned and hired
c. Where applicable, All Risk Property which includes Construction All
Risk/Erection All Risk (CAR/EAR) insurance for physical damage to property which
is assumed in the Contract;
d. Workers’ Compensation Insurance with statutory limits and Employer’s
Liability Insurance with limits of $1,000,000 per accident as required by the
laws and regulations at the Site in which the work is carried out.
Prior to the commencement of the Contract, Vindicator will furnish evidence
of said insurance coverage in the form of a Memorandum of Insurance that is
http://www51.honeywell.com/moi/. All insurance required in this Article will
be written by companies with a rating of no less than “A-, XII” by A.M. Best or
equivalent rating agency and such insurer’s will endeavor to provide thirty day
(30) notice of cancellation or non-renewal to the Buyer. In the event that
Vindicator implements a self-insured program, Vindicator will provide adequate
proof of financial responsibility.
5. HAZARDOUS SUBSTANCES, MOLD AND UNSAFE WORKING
“Hazardous substance” includes all of the following, and any by-product of or
from any of the following, whether naturally occurring or manufactured, in
quantities, conditions or concentrations that have, are alleged to have, or are
believed to have an adverse effect on human health, habitability of a Site, or
the environment: (a) any dangerous, hazardous or toxic pollutant, contaminant,
chemical, material or substance defined as hazardous or toxic or as a pollutant
or contaminant under state or federal law, and (b) any petroleum product,
nuclear fuel or material, carcinogen, asbestos, urea formaldehyde,
foamed-in-place insulation, polychlorinated biphenyl (PCBs), and (c) any other
chemical or biological material or organism, that has, is alleged to have, or is
believed to have an adverse effect on human health, habitability of a Site, or
means any type or form of fungus or biological material or agent, including
mold, mildew, moisture, yeast and mushrooms, and any mycotoxins, spores, scents,
or by-products produced or released by any of the foregoing. This includes any
related or any such conditions caused by third parties.
5.1.3 “Covered Equipment” means
the equipment covered by the Services to be performed by Vindicator under this
Agreement, and is limited to the equipment included in the respective work scope
5.2 Buyer has not observed or received notice from any source (formal
or informal) of (a) Hazardous Substances or Mold, either airborne or on or
within the walls, floors, ceilings, heating, ventilation and air conditioning
systems, plumbing systems, structure, and other components of the Site, or
within furniture, fixtures, equipment, containers or pipelines in a Site; or (b)
conditions that, to Buyer’s knowledge, might cause or promote accumulation,
concentration, growth or dispersion of Hazardous Substances or Mold on or within
5.3 Vindicator is not responsible for determining whether the Covered
Equipment or the temperature, humidity and ventilation settings used by Buyer,
are appropriate for Buyer and the Site except as specifically provided in an
attached Work Scope Document.
5.4 If any such materials, situations or conditions, whether disclosed
or not, are in fact discovered by Vindicator or others and provide an unsafe
condition for the performance of the work or Services, the discovery of the
condition constitutes a cause beyond Vindicator’s reasonable control and
Vindicator may cease the work or Services until the area has been made safe by
Buyer or Buyer’s representative, at Buyer’s expense. Vindicator may terminate
this Agreement if Buyer has not fully remediated the unsafe condition within
sixty (60) days of discovery.
5.5 Buyer represents that Buyer has not retained Vindicator to
discover, inspect, investigate, identify, prevent or remediate Hazardous
Substances or Mold or conditions caused by Hazardous Substances or Mold.
5.6 TO THE FULLEST EXTENT ALLOWED BY LAW, BUYER INDEMNIFIES AND HOLDS
VINDICATOR HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS AND COSTS OF WHATEVER
NATURE, INCLUDING BUT NOT LIMITED TO, CONSULTANTS’ AND ATTORNEYS’ FEES, DAMAGES
FOR BODILY INJURY AND PROPERTY DAMAGE, FINES, PENALTIES, CLEANUP COSTS AND COSTS
ASSOCIATED WITH DELAY OR WORK STOPPAGE, THAT IN ANY WAY RESULTS FROM OR ARISES
UNDER THE BREACH OF THE REPRESENTATIONS AND WARRANTIES IN THIS SECTION, THE
EXISTENCE OF MOLD OR A HAZARDOUS SUBSTANCE AT A SITE, OR THE OCCURRENCE OR
EXISTENCE OF THE SITUATIONS OR CONDITIONS DESCRIBED IN THIS SECTION, WHETHER OR
NOT BUYER PROVIDES VINDICATOR ADVANCE NOTICE OF THE EXISTENCE OR OCCURRENCE AND
REGARDLESS OF WHEN THE HAZARDOUS SUBSTANCE OR OCCURRENCE IS DISCOVERED OR
OCCURS. THIS INDEMNIFICATION SURVIVES TERMINATION OF THIS AGREEMENT FOR WHATEVER
6. WARRANTY AND LIMITATION OF LIABILITY
6.1 Vindicator will replace or repair any
product manufactured by Vindicator under this Agreement that fails within the
warranty period of 3 years after shipment to Buyer because of defective
workmanship or materials, except to the extent the failure results from Buyer
negligence, or from fire, lightning, water damage, or any other cause beyond the
control of Vindicator. This warranty applies to all products manufactured by
Vindicator. Commercial warranties applicable to products supplied by
third-parties and other Honeywell business entities to include Honeywell Access
and Video will be transferred to Buyer. This warranty runs to the Buyer, its
successors, assigns, and its buyers; the end user.
6.2 Products that are normally consumed in
operation or which have a normal life inherently shorter than the foregoing
warranty period including, but not limited to, consumables (e.g. printer
ribbons, lamps, batteries) are not covered under this warranty.
6.3 "Nonconformance" means failure to operate
due to defects in workmanship or material. Normal wear and tear and the need for
regular overhaul and periodic maintenance do not constitute Nonconformance.
"Product" means end items, line replaceable units and components thereof,
including those returned for exchange.
must notify Vindicator in writing during the warranty period of a Nonconformance
and, within 30 calendar days of discovery of the Nonconformance and disposition
the Product in accordance with Vindicator’s written instructions.
6.3.2 Vindicator’s obligation
and Buyer’s sole remedy under this warranty is repair or replacement, at
Vindicator’s election, of any Product Nonconformance. All Products repaired or
replaced are warranted for the unexpired portion of the original warranty
6.4 Buyer assumes round trip shipping costs
for nonconforming Products. Vindicator will not accept return goods shipped
C.O.D., unless prearranged with Vindicator in writing. Items returned to
Vindicator require a “Return Authorization” (RA) number. For issuance of an RA
number, contact Vindicator Buyer Service at (800) 367-1662. Vindicator may
repair or replace, at its sole and exclusive option, such defective Products,
except for shipping and insurance charges which is borne by the buyer.
6.5 Vindicator will not be liable under this
warranty if the Product has been exposed or subjected to any:
Maintenance, repair, installation, handling, packaging, transportation, storage,
operation or use that is improper or otherwise not in compliance with
Alteration, modification or repair by anyone other than Vindicator or those
specifically authorized by Vindicator;
contamination, foreign object damage, abuse, neglect or negligence after
shipment to Buyer;
caused by failure of a Vindicator supplied Product not under warranty or by any
hardware or software not supplied by Vindicator; or
6.5.5 Use of counterfeit or
replacement parts that are neither manufactured nor approved by Vindicator for
use in Vindicator’s manufactured Products.
6.6 Vindicator’s warranty will remain valid
when Trained/Certified personnel install, configure, perform advanced
programming, or maintain the system. When non-trained/certified personnel work
on a Vindicator system, the manufacturer’s warranty will become null and void.
6.7 Vindicator has no obligation under this
warranty unless Buyer maintains records that accurately document operating time,
maintenance performed and the nature of the unsatisfactory condition of
Vindicator’s Product. Upon Vindicator’s request, Buyer will give Vindicator
access to these records for substantiating warranty claims.
6.8 Vindicator warrants that Services
acquired direct from Vindicator will comply with the requirements stated in the
Agreement for a period of one year from the date Services are performed.
Vindicator’s obligation and Buyer’s sole remedy under this warranty is to
correct or re-perform defective Services, at Vindicator’s election, if Buyer
notifies Vindicator in writing of defective Services within the warranty period.
All Services corrected or re-performed are warranted for the remainder of the
original warranty period.
6.9 THESE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF
ALL OTHER WARRANTIES, WHETHER WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR PARTICULAR PURPOSE. IN NO EVENT WILL VINDICATOR BE LIABLE FOR ANY
INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES, EVEN IF INFORMED OF THE
POSSIBILITY OF THESE DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY. NO EXTENSION OF THIS WARRANTY WILL BE BINDING
UPON VINDICATOR UNLESS SET FORTH IN WRITING AND SIGNED BY VINDICATOR’S
6.10 Vindicator makes no representation or
warranty, express, implied or otherwise, regarding Hazardous Substances or Mold.
Vindicator has no duty, obligation or liability, all of which Buyer expressly
waives, for any damage or claim, whether known or unknown, including but not
limited to property damage, personal injury, loss of income, emotional distress,
death, loss of use, loss of value, adverse health effect or any special,
consequential, punitive, exemplary or other damages, regardless of whether such
damages may be caused by or otherwise associated with defects in the Services,
in whole or in part due to or arising from any investigation, testing, analysis,
monitoring, cleaning, removal, disposal, abatement, remediation,
decontamination, repair, replacement, relocation, loss of use of building, or
equipment and systems, or personal injury, death or disease in any way
associated with Hazardous Substances or Mold.
Vindicator will indemnify, defend, and hold the Buyer (including, without
limitation, the other Buyer’s employees) harmless against third party claims for
personal injury, death or loss of or damage to property caused solely by its
negligence in the performance of this Agreement. Vindicator’s obligations under
this Clause are conditioned on receiving prompt notice of a claim from the
Buyer. Vindicator will be entitled exclusively to control the defense. At
Vindicator’s expense, the Buyer will provide reasonable assistance in defense of
the claim including, but not limited to, promptly furnishing Vindicator with all
relevant information within its possession or control. Because Vindicator will
provide the defense, Vindicator will not be liable for any attorney fees or
costs of the Buyer. The Buyer may participate in the defense at it own cost. The
Buyer may not enter into any settlement, assume any obligation or make any
concession without the prior written approval of Vindicator, which may not be
unreasonably withheld. Notwithstanding the foregoing, Buyer agrees that
Vindicator will not be responsible for any damages caused by Mold or any other
fungus or biological material or agent, including but not limited to property
damage, personal injury, loss of income, emotional distress, death, loss of use,
loss of value, adverse health effect or any special, consequential, punitive,
exemplary or other damages, regardless of whether such damages may be caused by
or otherwise associated with defects in the Services.
8. LIMITATION OF LIABILITY
IN NO EVENT WILL VINDICATOR BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL,
SPECIAL, PUNITIVE, STATUTORY, OR INDIRECT DAMAGES, LOSS OF PROFITS, REVENUES, OR
USE, OR THE LOSS OR CORRUPTION OF DATA, EVEN IF INFORMED OF THE POSSIBILITY OF
THESE DAMAGES. THE AGGREGATE LIABILITY OF VINDICATOR FOR ANY CLAIMS ARISING OUT
OF OR RELATED TO THIS AGREEMENT WILL IN NO CASE EXCEED THE CONTRACT PRICE FOR
THE SPECIFIC PRODUCT OR SERVICE THAT GIVES RISE TO THE BREACH. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THESE LIMITATIONS AND EXCLUSIONS WILL APPLY WHETHER
LIABILITY ARISES FROM BREACH OF CONTRACT, INDEMNITY, WARRANTY, TORT, OPERATION
OF LAW, OR OTHERWISE.
9. EXCUSABLE DELAYS (FORCE MAJEURE)
Except for payment obligations, neither party will be liable to the other for
any failure to meet its obligations due to any Force Majeure event. If the
inability to perform continues for longer than 90 days, either party may
terminate this Agreement by providing written notice to the other party and
Buyer will pay Vindicator for Products delivered and Services performed prior to
termination. Force Majeure is an event beyond the reasonable control of the
non-performing Party and may include but is not limited to: (a) delays or
refusals to grant an export license or the suspension or revocation thereof, (b)
any other acts of any government that would limit a party’s ability to perform
the Agreement, (c) fires, earthquakes, floods, tropical storms, hurricanes,
tornadoes, severe weather conditions, or any other acts of God, (d) quarantines
or regional medical crisis’, (e) labor strikes or lockouts, (f) riots, strife,
insurrection, civil disobedience, landowner disturbances, armed conflict,
terrorism or war, declared or not (or impending threat of any of the foregoing,
if such threat might reasonably be expected to cause injury to people or
property), (g) shortages or inability to obtain materials or components and (h)
inability or refusal by Buyer's directed third party suppliers to provide
Vindicator parts, services, manuals, or other information necessary to the
Products or services to be provided by Vindicator under this Agreement. If a
force majeure event causes a delay, then the date of performance will be
extended by the period of time that the non-performing party is actually delayed
or for any other period as the parties may agree in writing.
10. BUYER CAUSED DELAY
Vindicator is not liable for any delays or increased costs caused by delays
in obtaining required Goods or Services from Buyer or Buyer designated
suppliers. If Buyer-caused delay occurs, and the delay is not Force Majeure
related, then the price and other affected terms will be adjusted to reflect
increased costs, delay, and other adverse impact suffered by Vindicator. If
delivery of Goods, Services, or other information necessary for performance of
this Agreement is delayed due to conduct of Buyer or Buyer-designated supplier,
then Vindicator may store Goods at Buyer risk and expense and may charge Buyer
for the delay.
11. INDEMNITIES AGAINST PATENT AND COPYRIGHT
Vindicator will defend any suit against the Buyer arising out of any actual
or alleged patent or copyright infringement of a valid United States patent or
copyright, to the extent based on the Product as delivered by Vindicator, and
indemnify for any final judgment assessed against Buyer resulting from the suit
provided that Buyer notifies Vindicator at the time it is apprised of the
third-party claim, and agrees to give sole and complete authority, information
and assistance (at Vindicator’s expense) for the defense and disposition of the
claim. Vindicator will not be responsible for any compromise or settlement made
without Vindicator’s consent.
Vindicator will have no obligation or liability with respect to: (a) Products
provided pursuant to Buyer's designs, drawings or manufacturing specifications;
(b) Products used other than for their ordinary purpose; (c) claims of
infringement resulting from combining any Product furnished under this Agreement
with any article not furnished by Vindicator; (d) use of other than the latest
version of software Product released by Vindicator; or (e) any modification of
the Product other than a modification by Vindicator.
Further, Buyer agrees to indemnify and defend Vindicator to the same extent
and subject to the same restrictions as set forth above in Vindicator's
obligations to Buyer for any suit against Vindicator based upon a claim of
infringement resulting from (a), (b), (c), (d) or (e) of the preceding
Because Vindicator has exclusive control of resolving infringement claims
under this Agreement, in no event will Vindicator be liable for Buyer's attorney
fees or costs.
If a claim is made or if Vindicator believes that a claim is likely,
Vindicator may, at its option, and at its expense, procure for Buyer the right
to continue using the Product, replace or modify the Product so that it becomes
non-infringing; or accept return of the Product or terminate Buyer’s license to
use the infringing Product and grant Buyer a credit for the purchase price or
license fee paid for that product, less a reasonable depreciation for use,
damage, and obsolescence. Further, Vindicator may cease shipping infringing
Products without being in breach of this Agreement.
Any liability of Vindicator under this provision is subject to the
"Limitation of Liability" provision of this Agreement.
This provision states the parties’ entire liability, sole recourse and their
exclusive remedies with respect to infringement. All other warranties against
infringement of any intellectual property rights, statutory, express or implied
are hereby disclaimed.
12. SOFTWARE LICENSE
12.1 Definition. “Licensed Software” means software,
including all related updates, changes, revisions and documentation, if any,
that Buyer is entitled to use under the terms of this Agreement and which is not
subject to a separate software license between the parties. Said license is
granted only for the purpose of operating, maintaining and servicing Vindicator
12.2 License. Subject to Buyer’s compliance with the terms of
this Agreement, Vindicator grants to Buyer and Buyer accepts a nontransferable,
nonexclusive license, without the right to sublicense, to use the Licensed
Software in the ordinary and normal operation of the Product on which it is
installed or with which it is intended to be used under this license.
12.3 Ownership. Vindicator (and its licensors, if applicable)
retains all title to the intellectual property related to all material and
software provided under this Agreement.
12.4 Transfer of Licensed Software. Buyer may transfer its
license to use the Licensed Software to a third party only in conjunction with
Buyer’s sale of any Vindicator or Buyer product on which the Licensed Software
is installed or with which it is used. Vindicator’s transfer of the Licensed
Software as authorized herein must be under terms consistent with and no less
stringent than the terms set forth in this Agreement. Except as specifically
permitted in this Agreement, the Licensed Software may not be sublicensed,
transferred or loaned to any other party without Vindicator’s prior express
12.5 Copies. Unless specifically authorized by Vindicator in
writing, Buyer is prohibited from making copies of Licensed Software except for
backup purposes. Buyer will reproduce and include all Vindicator proprietary and
copyright notices and other legends both in and on every copy made.
12.6 Protecting Integrity. Buyer may not directly or indirectly
make any effort to deconstruct the software provided, including, but not limited
to: translating, decompiling, disassembling, reverse assembling, reverse
engineering, creating derivative works or compilations, or performing any other
operation to obtain any portion of its contents. Vindicator will take all
reasonable actions necessary to prevent unauthorized access, disclosure or use
of the software provided.
12.7 Refinement. Notwithstanding the warranties provided
elsewhere herein, Buyer acknowledges that Licensed Software may be product,
aircraft, or sensor specific and, as such, may require reasonable adjustment or
refinement to suit Buyer’s specific requirements. Subject to the receipt of
adequate written notice and reasonable aid from Buyer, Vindicator will make
reasonable, commercial efforts to accomplish reasonable adjustments or
refinements for up to 90 calendar days after initial delivery of the Licensed
12.8 Negation of Other Licenses. Except as expressly granted
herein, no license or right, including sublicensing rights, either expressly,
implicitly, by estoppel, conduct of the parties, or otherwise, is granted by
Vindicator to Buyer.
13. DISPUTE RESOLUTION
Any dispute arising out of or relating to this contract, including the
breach, termination or validity thereof, will be finally resolved by a sole
arbitrator in accordance with the Center for Public Resources (CPR) Institute
for Dispute Resolution Rules for Non-Administered Arbitration then currently in
effect. The arbitration will be governed by the Federal Arbitration Act, 9 U.S.C.
§§ 1-16, and judgment upon the award rendered by the arbitrator may be entered
by any court having jurisdiction thereof. The place of arbitration will be New
Either party may apply to the arbitrator seeking injunctive relief until the
arbitration award is rendered or the controversy is otherwise resolved. Either
party also may, without waiving any remedy under this agreement, seek from any
court having jurisdiction any interim or provisional relief that is necessary to
protect the rights or property of that party, pending the arbitrator’s
determination of the merits of the controversy.
If any dispute, or response to any dispute, includes an allegation that
potentially concerns whether any intellectual property right owned, controlled
or licensable by either party is invalid, unenforceable or infringed or
misappropriated, or is otherwise limited in scope or application, then either
party may, in its sole discretion, elect to have that dispute adjudicated before
a court of competent jurisdiction and this section will not be binding on either
party with respect to that dispute in its entirety or any related dispute,
including any portions of a dispute that do not concern intellectual property
ACCEPTANCE OF THE CONTRACT
14.1 Terms and Conditions of Sale. Unless a general terms
agreement executed by Buyer and Vindicator applies, these Terms and Conditions
of Sale apply to this offer and to any resulting order issued by Buyer during
the offer period, whether or not this offer is referenced. Except as provided in
the “Purchase Order” section below, all provisions on Buyer’s purchase order and
all other documents submitted by Buyer are expressly rejected. Vindicator will
not be deemed to have waived these Terms and Conditions if it fails to object to
provisions submitted by Buyer. Any modification or addition to these Terms and
Conditions must be in writing and signed by the parties' authorized
14.2 Purchase Order. Vindicator accepts Buyer's purchase order,
but acceptance is expressly made conditional on agreement by Buyer to
Vindicator's terms and conditions included in this acknowledgement. Buyer agrees
to Vindicator’s terms (including any inconsistencies between Buyer's purchase
order and this conditional acceptance), unless Buyer promptly provides written
notice of objection to Vindicator.
15.1 Entire Agreement. Unless a separate NDA executed by the
Buyer and Vindicator applies, this Agreement contains the entire agreement
between the parties with respect to the subject matter of the Agreement and
supersedes any prior representations or agreements, oral or written, and all
other communications between the parties relating to the subject matter of this
Agreement. This Agreement will not be varied except in writing signed by an
authorized representative of each party.
15.2 Choice of Law and Forum. This Agreement will be governed
by the laws of the State of New York without regard to conflicts of law
principles. The United Nations Convention on Contracts for the International
Sale of Goods, 1980, and any successor thereto will not apply to this Agreement.
The Federal and State courts within the State of New York will have exclusive
jurisdiction to adjudicate any dispute arising out of or related to this
15.3 Severability. If any provision or portion of a provision
of this Agreement is determined to be illegal, invalid, or unenforceable, that
portion or provision will be stricken and the validity and enforceability of the
remaining provisions will not be affected.
15.4 Assignment. Neither Party will assign any rights or
obligations under this Agreement without the advance written consent of the
other Party, which consent will not be unreasonably withheld. Either Party may
assign this Agreement to any affiliate of that party or in connection with the
sale or transfer of all or substantially all of the assets of the product line
or business to which it pertains. Any attempt to assign or delegate in violation
of this clause will be void. Not withstanding the above, Vindicator retains the
right to assign its right to receive payment to a third party.
15.5 Independent Contractor. The Parties acknowledge that they
are independent contractors and no other relationship, including without
limitation partnership, joint venture, employment, franchise, master/servant or
principal/agent is intended by this Agreement. Neither Party has the right to
bind or obligate the other.
15.6 Special Tooling. Special Tooling includes, but is not
limited to, jigs, dies, fixtures, molds, patterns, special taps, special gauges,
special test equipment, other special equipment and manufacturing aids and
replacement items, now existing or created in the future, together with all
related specifications, drawings, engineering instructions, data, material,
equipment, software, processes, and facilities created or used by Vindicator in
the performance of its obligations under this Agreement. Vindicator owns all
Special Tooling, except to the extent an authorized representative of Vindicator
specifically transfers title for any Special Tooling in writing to Buyer. Any
transfer of title to Special Tooling doesnot include transfer of Vindicator’s
intellectual property used to create or that may be embodied in the Special
Tooling, other than a license to use the Special Tooling.
15.7 Technical Advice. Vindicator may furnish technical
assistance, advice and other information to Buyer relating to the use of the
Product. Vindicator has no obligation or liability for any technical assistance,
advice or information it furnishes concerning the Product. Unless otherwise
specifically agreed to in writing by Vindicator , all technical assistance,
advice and information are given without warranty and are accepted by Buyer who
assumes responsibility for any use.
Buyer is responsible for compliance with all import and export control laws
and regulations. Buyer must obtain at its sole cost and expense all import, and
re-export approvals and licenses required for Products, transfers, services and
technical data delivered and will retain documentation evidencing compliance
with those laws and regulations.
Vindicator will not be liable to Buyer for any failure to provide Products,
services, transfers or technical data as a result of government actions that
impact Vindicator's ability to perform, including:
failure to provide or the cancellation of re-export licenses;
subsequent interpretation of applicable import, transfer, export or re-export
law or regulation after the date of any order or commitment that has a material
adverse effect on Vindicator’s performance; or
c. Delays due to Buyer’s
failure to follow applicable import, export, transfer, or re-export laws and
If Buyer designates the freight forwarder for export shipments from the
United States, then Buyer's freight forwarder will export on Buyer's behalf and
Buyer will be responsible for any failure of Buyer's freight forwarder to comply
with all applicable export requirements. Vindicator will provide Buyer's
designated freight forwarder with required commodity information.
17. TERMS OF PAYMENT
Subject to Vindicator’s approval of Buyer’s credit, payment terms are as
17.1 General. Vindicator will invoice at least monthly for all
materials delivered to the job site or to an off-site storage facility and for
all installation, labor, and services performed, both on and off the job site.
Buyer agrees to pay the full amounts invoiced upon receipt of the invoice at the
address specified by the Buyer. Payment is due 30 calendar days from the date of
invoice. Payments must be made in U.S. currency unless agreed otherwise in
writing. If Buyer is delinquent in payment to Vindicator, Vindicator may
withhold performance until all delinquent amounts and late interest, if any, are
paid. Additionally, Vindicator may at its option: (a) repossess Products or
Software for which payment has not been made; (b) charge interest on delinquent
amounts at the lower of 1.5% per month or the maximum rate permitted by law, for
each full or partial month; (c) recover all costs of collection, including but
not limited to reasonable attorneys' fees; (d) combine any of the above rights
and remedies as may be permitted by applicable law. These remedies are in
addition to those available at law or in equity. Vindicator may re-evaluate
Buyer's credit standing at any time and modify or withdraw credit. Buyer may not
set off or recoup invoiced amounts or any portion thereof against sums that are
due or may become due from Vindicator or any other Honeywell business entity.
17.2 Retainage. Buyer may not withhold, as retainage, a greater
percentage than is withheld from Buyer under a prime contract when progress
payments are applicable. Buyer must pay all retainage to Vindicator within 30
days after Vindicator’s work is substantially complete.
18. LETTER OF CREDIT
When specifically requested by Vindicator, Buyer will establish an
irrevocable Commercial Letter of Credit (Letter of Credit) (or in the case of an
International Agreement “Export Letter of Credit”), in a form and confirmed by a
bank acceptable to Vindicator for all payments not received prior to shipment.
The Letter of Credit must remain valid until final payment is made. All bank or
other charges associated with opening and maintaining this Letter of Credit are
19. WORK BY OTHERS
19.1 Vindicator has the right to subcontract its obligations under
this Agreement. Use of a subcontractor will not release Vindicator from
liability under this Agreement for performance of the subcontracted obligations.
19.2 Unless otherwise indicated, the following items are to be
furnished and installed by others: electric wiring and accessories, all in-line
devices, equipment foundations, riggings, and all other items and work of a like
19.3 Services Vindicator will provide under this Agreement
specifically exclude professional services which constitute the practice of
architecture or engineering unless specifically set forth in the Scope of Work.
Buyer or Owner will specify all performance and design criteria that Vindicator
will follow in performing Work under this Agreement. If professional design
services or certifications by a design professional related to systems,
materials, or equipment is required, such services and certifications are the
responsibility of others. To the fullest extent permitted by law, Buyer
indemnifies and holds harmless Vindicator and its agents and employees from and
against any and all claims, damages, losses and expenses, including but not
limited to attorneys’ fees, that in any way result from or arise under breach of
the representations in this Section 17. This indemnification survives
termination of this Agreement for whatever reason. Nothing in this Section 17
may be construed to require that Buyer indemnify and hold harmless Vindicator
from claims and costs resulting from Vindicator’s negligent actions or willful
Delivery terms are EX Works (EXW Incoterms 2000), Vindicator’s facility
except that Vindicator is responsible for obtaining the export license. Buyer is
responsible for all duties, taxes and other charges payable upon export.
Vindicator will schedule delivery in accordance with its standard lead time
unless the Order states a later delivery date or Vindicator agrees in writing to
an earlier delivery date. If Vindicator prepays charges for transportation or
any special routing, packing, labeling, handling or insurance requested by
Buyer, Buyer will reimburse Vindicator upon receipt of an invoice for those
charges. Title will pass to Buyer upon delivery.
21. DAMAGE OR LOSS
Vindicator is not liable for damage to or loss of equipment and software
after delivery to destination determined by this Agreement or any applicable
prime contract. If thereafter, and prior to payment in full to Vindicator by
Buyer, any such equipment or software is damaged or destroyed by any cause
whatsoever, other than by the fault of Vindicator, the Buyer agrees promptly to
pay or reimburse Vindicator for such loss.
Either Party may terminate this Agreement and any or all unperformed Orders
by giving written notice to the other party upon the occurrence of any of the
a. The other
Party materially breaches this Agreement and fails to remedy the breach within
60 calendar days after receipt of written notice that specifies the grounds for
the material breach;
b. The other
Party fails to make any payment required to be made under this Agreement when
due, and fails to remedy the breach within 3 calendar days after receipt of
written notice of non-payment; or
insolvency or suspension of the other Party's operations or any petition filed
or proceeding made by or against the other Party under any state, federal or
other applicable law relating to bankruptcy, arrangement, reorganization,
receivership or assignment for the benefit of creditors or other similar
Termination does not affect any debt, claim or cause of action accruing to
any party against the other before the termination. The rights of termination
provided in this clause are not exclusive of other remedies that either party
may be entitled to under this Agreement or in law or equity.
23.1 A change order is a written order signed by Buyer and Vindicator
authorizing a change in the Work or adjustment in the price or a change to the
23.2 Buyer may issue a written change order to request changes within
the scope of the Agreement. If the requested change is acceptable to Vindicator,
Vindicator will inform Buyer if the change will cause an increase in price
(including without limitation as a result of labor rate escalation, changes in
material prices and availability, and foreign exchange exposure) or time
required to perform the work. Vindicator will not be obligated to proceed with a
requested change until documented in a change order signed by authorized
representatives of both Parties. However, if Vindicator proceeds at Buyer’s
direction with the change prior to signing the change order then Buyer must pay
for the change as invoiced by Vindicator.
23.3 Vindicator may, without notice to Buyer, incorporate changes to
Products that do not alter form, fit, or function. Vindicator may, at its sole
discretion, also make such changes to Products previously delivered to Buyer.
23.4 Vindicator may make a written request to Buyer to modify this
Agreement based on the receipt of, or the discovery of, information that
Vindicator believes will cause a change to the scope, price, schedule, level of
performance, or other facet of the Agreement. Vindicator will submit its request
to Buyer within a reasonable time after receipt of, or the discovery of,
information that Vindicator believes will cause a change to the scope, price,
schedule, level of performance, or other facet of the Agreement. This request
must be submitted by Vindicator before proceeding to execute the Work, except in
an emergency endangering life or property, in which case Vindicator may act, in
its discretion, to prevent threatened damage, injury or loss. Vindicator’s
request will include information necessary to substantiate the effect of the
change and any impacts to the Work, including any change in schedule or contract
price. If Vindicator’s request is acceptable to Buyer, Buyer will issue a Change
Order consistent therewith. If Buyer and Vindicator cannot agree on the amount
of the adjustment in the Price, or the Schedule, it must be determined pursuant
to the Dispute Resolution article of this Agreement. Any change in the Price or
the Schedule resulting from such claim must be authorized by change order.
24. ACCEPTANCE OF THE WORK
Products and services are presumed accepted unless Vindicator receives
written notice of rejection from Buyer explaining the basis for rejection within
10 and three calendar days after delivery for products and services
respectively. Buyer must disposition rejected Product to Vindicator in
accordance with Vindicator’s written instructions. Vindicator will have a
reasonable opportunity to repair or replace rejected Products, at its option.
Vindicator assumes shipping costs in an amount not to exceed actual reasonable
direct freight charges to Vindicator’s designated facility for the return of
properly rejected Products. Buyer will provide copies of freight invoices to
Vindicator upon request. Following initial delivery, the party initiating
shipment will bear the risk of loss or damage to Products in transit. If
Vindicator reasonably determines that rejection was improper, Buyer will be
responsible for all expenses caused by the improper rejection.
25. RETURNS AND NON-WARRANTY REPAIRS
All items returned to Vindicator require a “Return Authorization” (RA)
number. For issuance of an RA number, contact Vindicator Buyer Service at (800)
367-1662. Unauthorized returns are not accepted and will be returned freight
||At its option and within 30 days of delivery, Vindicator may
accept as a return for credit unused product in its original package and in
condition that could be sold as new.
||Third Party equipment will only be accepted for return
subject to the original sellers’ willingness to accept a return with no
resulting adverse impact to Vindicator.
||Goods ordered in excess because of errant system design by
Buyer are not returnable.
||Damaged goods are not returnable.
||Obsolete, special and custom goods to include goods such as
cabinets, enclosures, etc., that are purpose built and/or assembled from
components that are normally and usually sold separately are not returnable.
||Credit will be issued at either, price paid or current
price, whichever is lower. Returns are subject to a restocking fee of
eighteen (18) percent of the item price or $250, whichever is greater.
25.2 Non-Warranty Repairs. Buyer will be charged for repairs on out
of warranty goods. Applicable charges will be calculated and quoted when a RMA
number is issued. Charges may vary based on condition of goods. Buyer must
pay shipping costs to the Vindicator designated repair facility. Costs to repair
and return defective goods will be the responsibility of the buyer. For all
non-warranty repairs, buyer will be billed for parts, labor and shipping.
repairs for Vindicator manufactured items are warranted for one (1) year from
date of repair. Commercial third party items will receive the manufacturer’s
repair warranty, if any, that is transferred to the buyer and will be provided
specific request from the buyer.
Purchase of Vindicator equipment and solutions is intended for direct
delivery to an end-user only. Buyer may not act as a Dealer/Distributor and
resell to another non-end user. Vindicator reserves the right to deviate from
this policy for strategic purposes.
All provisions of this Agreement which by their nature should continue in
force beyond the term of this Agreement will remain in force after expiration or
termination of this Agreement.