The Parties’ Agreement, together with these UltraLevel Terms and Conditions©, as published online and as may be updated or amended from time to time (the “Terms and Conditions”), shall apply to and govern the rights and obligations of UltraLevel and Customer and are incorporated by this reference into the Agreement and into each applicable Work Order or Statement of Work document.
- Consulting Services
1.1 Performance of Consulting Services. The Agreement and all UltraLevel Terms and Conditions apply to all consulting services (“Services”) performed by UltraLevel for Customer. UltraLevel will perform its Services for Customer under a work order signed by both Parties (“Work Order”), which shall incorporate by reference UltraLevel Terms and Conditions©. From time to time, Customer may request the performance of additional services or changes to a Work Order. In such cases, the Parties will prepare and execute a new Work Order or an amendment to the Work Order. Each Work Order will include a description of the Services, pricing, payment terms, and any special terms and conditions, and will incorporate by reference all UltraLevel Terms and Conditions© as published online. In the event the Parties require a more detailed description of Services, the Parties may enter into a written Statement of Work (“SOW”) concerning the Services to be provided.
1.2 Fees and Expenses. As compensation for the Services provided pursuant to this Agreement, Customer will pay UltraLevel the fees and reimbursable expenses indicated in each Work Order plus any applicable tax.
2.1 Application. The Agreement and all UltraLevel Terms and Conditions © apply to any Products that Customer purchases (or leases through a third party) from UltraLevel.
2.2 Purchase Price; Payment; Security Interest. UltraLevel will submit to Customer a quote setting forth the purchase price for Products, prior to UltraLevel’s delivery of any Product. UltraLevel and Customer shall enter into a written agreement as to price and terms for any Product. Customer agrees to pay UltraLevel the total purchase price for the Products, plus any applicable sales/use tax. Payment is due on the date specified by UltraLevel which shall be no earlier than thirty (30) days after Customer’s receipt of the Product. Any personal property taxes related to the Product that are assessable on or after actual delivery of the Product are Customer’s responsibility. Any payment not received by UltraLevel by the date specified for payment will be subject to a late fee of the lesser of one and one-half percent (1.5%) per month, or the maximum allowed by law. Customer agrees to pay for any partial shipment of Product under the same terms set forth above. Customer hereby grants to UltraLevel a security interest in the Products. Customer irrevocably appoints UltraLevel or its designee as Customer’s agent in fact for the purpose of executing and filing any financing statements or other applicable documents on Customer’s behalf that UltraLevel believes are necessary to perfect UltraLevel’s security interest or other rights to collection. Upon default, including Customer’s failure to pay sums when due, UltraLevel shall have all rights and remedies for default provided by applicable law. As to each item of Product, UltraLevel’s security interest shall terminate when UltraLevel has received all amounts Customer owes to UltraLevel for that Product.
2.3 Intent to Purchase or Lease. UltraLevel may, in UltraLevel’s discretion, provide Customer with the option of either purchasing directly from UltraLevel or leasing a Product through a third-party lessor (“Product Lessor”). If UltraLevel and Customer agree to a lease option, then Customer must, within five (5) days, issue a written purchase request to UltraLevel concerning the Product. Prior to the date of shipment, Customer will provide UltraLevel with either the purchase order between Customer and the Product Lessor, or a signed agreement between Customer and the Product Lessor. Customer is responsible for performance of all terms included in any Product Lease required by any Product Lessor.
In the event of any Customer lease of any Product Customer must provide to Product Lessor and UltraLevel a signed “Certificate of Acceptance” or similar lessor document (“COA”) for the Product within five (5) days of delivery of the Product. If Customer fails to timely provide a signed COA or a written notice of rejection (as discussed in par 2.4 below), then Customer will be deemed to have irrevocably accepted the Product, including the terms and obligations of the Product Lease, and will be responsible for payment in full for the Products delivered, and for performance of all obligations under the Lease. Customer may be invoiced for late fees of one and one-half percent (1.5%) per month on payments not received by UltraLevel within thirty (30) days of delivery.
2.4 Rejection and Claims. All Product purchases by Customer shall be non-cancellable, upon UltraLevel’s acceptance of any order. Customer may reject a Product only if the Product fails to conform to a written material specification that Customer provided to UltraLevel in advance of the order. With respect to any Product leased through a Product Lessor, Customer shall comply with all lease obligations regarding rejection or acceptance of Product. In order to reject any Product purchased from UltraLevel on the basis of non-conformance of the Product, Customer must give UltraLevel explicit written notice of the rejection within five (5) days of delivery of the Product to Customer. The notice must specifically indicate that it is a notice of rejection and must describe the non-conformity for which Customer is rejecting the Product. UltraLevel may, in its discretion, use reasonable commercial efforts to cure the non-conformity, including consultation with the manufacturer of the Product. If UltraLevel and the manufacturer are not able, in their sole determination, to cure the non-conformity within thirty (30) days of receiving Customer’s notice of rejection, then Customer’s sole and exclusive remedy for non-conformance, or in connection with the Product order, shall be return of the Product to UltraLevel or the manufacturer, and UltraLevel will refund the full amount Customer has paid for the non-conforming Product. Product is deemed to be irrevocably accepted by Customer thirty (30) days from delivery unless, within that time limit, Customer has timely provided notice of rejection in compliance with this subparagraph and has returned the Product to UltraLevel. With respect to any Product leased through a Product Lessor, Customer shall be deemed to have irrevocably accepted the leased Product unless Customer has provided notice of rejection in compliance with this subparagraph and in compliance with the Product lease within thirty (30) days from delivery, or within the time for rejection set forth in the Product lease, whichever period is shorter.
2.5 Delivery; Freight Costs; Purchase Orders; Risk of Loss; Title. UltraLevel will arrange for delivery of the Product to the Customer. Customer may issue a purchase order regarding any purchase or lease of any Product. However, any purchase order or other document issued by Customer shall be accepted for accounting purposes only, and for no other purpose, and shall not be regarded as an amendment, or offer of amendment, to this Agreement. The terms of this Agreement shall govern all Products or Services provided under this Agreement. No provision of any Customer purchase order or other document shall amend or alter any provision of this Agreement. Any Customer change in the quantity or Product ordered on any purchase order, after receipt of such purchase order but prior to delivery or performance of Products and Services by UltraLevel may result in a rework, cancellation or restocking charge to Customer. UltraLevel will deliver Products to the location specified by Customer in the Work Order. Customer agrees to pay all costs of the delivery (including insurance) of the Product to the location, provided, however, that Customer will not incur such costs if they are paid by the manufacturer or third party vendor providing such Product. Risk of loss for the Product passes to Customer upon shipment. Title to a Product will pass to Customer upon full payment for the Product (including any delivery charges or taxes).
2.6 Installation. Unless otherwise provided in a Work Order, all Products are provided to Customer without installation services. Customer assumes all costs and obligations regarding installation of any Product, unless UltraLevel agrees to provide installation services for an agreed fee. In the event Customer purchases installation services from UltraLevel, Customer will make available, at no cost to UltraLevel, a suitable place and facilities for installation of the Product, including but not limited to providing all necessary security, power, and air conditioning required for operation of the Product as indicated in any instructions or specifications provided by the manufacturer(s).
- Limited Warranties; Disclaimers.
3.1 Services. UltraLevel shall utilize its best efforts to ensure that Services provided to Customer under this Agreement are performed in accordance with generally accepted industry standards of care and competence. UltraLevel disclaims any warranty regarding any Services provided by UltraLevel to Customer, including any warranty of merchantability or fitness for any particular purpose. Customer’s sole and exclusive remedy for any breach by UltraLevel of any term or obligation under this Agreement, or under any Work Order, will be for UltraLevel, in its sole discretion, to either: (i) use reasonable commercial efforts to re-perform or correct the Services, or (ii) refund the fee Customer paid for the Services that are in breach of this Agreement. Customer must provide written notice of non-compliance, and make a claim for any breach under this Agreement, in writing, within thirty (30) days of UltraLevel’s performance of the non-complying Services UltraLevel shall have no obligation to re-perform or correct Services, or to make any refund of payment, in the event Customer makes any alteration to the Service work or Products provided by UltraLevel. In the event Customer fails to provide written notice to UltraLevel of non-compliance in Services within the required 30-day period, Customer will be deemed to have irrevocably accepted the Services and waived any claim of breach or non-compliance.
3.2 Products. UltraLevel does not warrant any Product. All Products are provided to Customer by UltraLevel “AS IS.” UltraLevel will, to the extent it is allowed to by its vendors, pass through any warranties and indemnifications provided by the manufacturer of the Product. Customer, recognizing that UltraLevel is not the manufacturer of any Product, expressly waives any claim that Customer may have against UltraLevel based upon any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property right (each a “Claim”) with respect to any Product and also waives any right to indemnification from UltraLevel against any such Claim made against Customer by another. Customer acknowledges that, in performing under this Agreement, UltraLevel shall rely upon the written material specifications provided by Customer in advance of Customer’s order, and that no employee of UltraLevel or any other party is authorized to make any representation or warranty on behalf of UltraLevel that is not expressly set forth in this Agreement.
3.3 Disclaimer and Further Limitation of Warranties. UltraLevel disclaims all other warranties of accuracy, title, non-infringement, merchantability, suitability, or fitness for any particular purpose. UltraLevel obligations are further limited by the limitations of liability set forth in subparagraph 4.1.
- LIMITATIONS OF LIABILITY; Indemnification.
4.1 LIMITATIONS OF LIABILITY. In no event, and notwithstanding the failure of essential purpose of any remedy set forth herein, will UltraLevel or any of its third party suppliers be liable to Customer, or to Customer’s customers, suppliers, employees or agents, or to any third party, for any damages or losses of any kind including lost revenue, lost profits, lost business, damage to good will or reputation, lost or damaged data consequential, special, incidental, or punitive damages, DELAYS, INTERRUPTIONS, OR VIRUSES arising out of or related to this Agreement regardless of the basis of the claim, whether in contract or tort (including negligence, strict liability or otherwise) AND WHETHER FORESEEABLE OR NOT and even if UltraLevel has been advised of the possibility of such damages AND IN NO EVENT WILL UltraLevel’s AGGREGATE liability (including attorneys’ fees and ALL other costs) to Customer, IF ANY, exceed the amount of the fees actually paid BY CUSTOMER to UltraLevel UNDER THIS AGREEMENT FOR THE SPECIFIC PRODUCT(S) AND/OR SERVICES FOR WHICH LIABILITY HAS BEEN ASSERTED.
4.2 Intellectual Property Indemnification. UltraLevel shall defend, indemnify, and hold Customer harmless against any costs, including reasonable attorney’s fees, losses, damages, liability, claims, demands and actions for any actual infringement of any patent, trademarks, or other proprietary rights held by a third party on the date of this Agreement to the extent arising from any Deliverables (as defined in paragraph 6.1 below). UltraLevel’s indemnification obligations under this Section 4.2 are contingent upon the following: (a) UltraLevel shall have the right to control the defense and settlement of all such actions or claims; (b) Customer shall take such actions as UltraLevel may reasonably request in connection with such settlement or defense; and (c) Customer shall promptly notify UltraLevel in writing of the claim. As to UltraLevel’s indemnification obligations pursuant to this Section 4.2, UltraLevel may, at its option, obtain the right to Customer’s continued use of the Deliverable or require Customer to return the Deliverable to UltraLevel. In the event that UltraLevel requires the return of the Deliverable pursuant to this Section 4.2, UltraLevel shall refund the fees paid by Customer for such Deliverable, less depreciation calculated on a three (3) year straight-line basis from the date of delivery of the Deliverable to Customer. Notwithstanding the foregoing, UltraLevel shall have no obligation under this Section 4.2 with respect to any claim or action that is based upon (a) use of the Deliverable in breach of this Agreement or the applicable license agreement or Work Order; (b) use of the Deliverable with any product, software or system not provided or approved by UltraLevel; or (c) any modification of the Deliverable made by Customer or any of its employees or agents or by any third party, or made without the prior knowledge and written approval of . This Section 4.2 states the entire liability and obligation of UltraLevel with respect to infringement of any intellectual property rights.
4.3 Indemnification. Each Party (the “Indemnifying Party”) agrees to defend, indemnify, and hold harmless the other Party (the “Indemnified Party”) from and against any claim for bodily injury or death of any person(s) or tangible property damage to the extent proximately caused by the gross negligence or willful misconduct on the part of the Indemnifying Party in the course of performing its obligations under this Agreement.
- Confidentiality; Non-Solicitation.
5.1 During the term of this Agreement and for a period of three (3) years thereafter (and, as to trade secrets of each Party, for such longer time as such information remains a trade secret of such Party without unauthorized disclosure by the receiving Party hereunder), each Party will keep in confidence all Confidential Information (as defined below) of the other Party and neither Party will use or disclose to any person or entity, directly or indirectly, without the prior written approval of the other, any Confidential Information relating to the other Party obtained by virtue of this Agreement or the Services performed pursuant to the Agreement, except on a confidential basis to its business, legal and financial advisors or as required to be disclosed under applicable law or by legal process. “Confidential Information” means information that a Party possesses or to which such Party has legal rights (for example, third party Confidential Information in such Party’s lawful possession) and includes, but is not limited to, technical processes and formulas, source and object code, product designs, fees, quotes and selling price and other unpublished financial information, product and business information. Confidential Information does not include any information that is: (i) generally known or available to the public through no act of the receiving Party, (ii) already known to the receiving Party at the time of receiving such Information, (iii) independently developed by the receiving Party; or (iv) furnished to the receiving Party by a third party with the right to do so. Customer and UltraLevel agree to use all reasonable precautions and take any action necessary to prevent the Confidential Information from being acquired, accessed or used by unauthorized persons.
5.2 Customer agrees that, during the initial or renewed term of this Agreement, or during the time in which UltraLevel performs any Services for, or sells or leases any Products to, Customer, and for a period of one (1) year following the last date when such Services or Products are performed or delivered, Customer shall not, either directly or indirectly, for itself or for any affiliated company or entity, hire, employ, solicit, contract with, or make any inquiry or offer of employment to, any UltraLevel personnel, employee or contractor.
- License and Ownership Rights.
6.1 Deliverables. As between UltraLevel and Customer, materials specifically prepared by UltraLevel for Customer as a deliverable under a Work Order (“Deliverables”) become Customer’s property when delivered to Customer and fully paid for by Customer. As between Customer and UltraLevel, Customer will own all intellectual property rights in any Deliverables (exclusive of pre-existing work) and UltraLevel will own all intellectual property rights to any pre-existing work that is included in any Deliverable (the “Pre-existing Work”). To the extent of UltraLevel’s ownership rights in such Pre-Existing Work, UltraLevel grants Customer a non-exclusive, royalty-free, non-transferable, perpetual license to use such Pre-existing Work, but only in connection with Customer’s use of the Deliverable in which it is included.
6.2 Common Elements. To the extent that a Deliverable contains one or more Common Elements (as defined herein) that are developed by UltraLevel during the course of creating the Deliverable, Customer grant UltraLevel a royalty-free, perpetual, non-exclusive, worldwide, transferable license to make, have made, use, sell, improve, copy, prepare derivative works of, display, perform and distribute any such Common Element as determined by UltraLevel in its sole discretion. As used in this Section, “Common Element” means any part of a Deliverable that is not solely and directly related to Customer’s business, but rather is used or useful to perform common operations or tasks (such elements may include, by way of example only, hardware or software configurations, scripting of repeated tasks, customizations to third-party applications, software operations or techniques for the manipulation of data). Customer and UltraLevel will sign such documents and take such actions as are reasonably requested by the other to effectuate and confirm the agreed to ownership rights and interests.
- Term and Termination.
7.1 This Agreement is effective upon the date executed by both parties, and will remain in force for a period of one year. The Agreement will be renewed from year to year, unless one of the parties gives notice, in writing, to the other party of its intention to terminate this Agreement. Such notice must be given not later than thirty (30) days prior to the expiration of the initial term, or any renewed term.
7.2 Either Party may terminate this Agreement or any Work Order upon at least thirty (30) days’ advance written notice to the other. However, upon termination of this Agreement, this Agreement will continue to remain in effect with respect to any Work Order already issued at the time of such termination, until such Work Orders are themselves either terminated or the performance there under is completed. In the event of termination of this Agreement or any Work Order, Customer will pay UltraLevel for all Product shipped to Customer as well as for all partial Services provided (plus, to the extent that Work Order for Services provides for a termination fee, payment of such termination fee) and all direct costs incurred by UltraLevel in performance, or preparation for performance, of Services there under.
7.3 All provisions of this Agreement regarding indemnification, confidentiality, non-solicitation, ownership of properties, liability, waiver, payment, and limitation of damages, shall survive the termination of this Agreement, and shall remain in full force and effect following termination of this Agreement for any reason.
- Taxes. Customer will pay or reimburse UltraLevel for all sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by UltraLevel under this Agreement, excluding, however, income taxes on profits that may be levied against UltraLevel.
9.1 Authority. Customer warrants that Customer has the legal right and authority, during the term of this Agreement, to operate, configure, provide, place, install, upgrade, add, maintain and repair (and authorize UltraLevel to do any of the foregoing to the extent the same are included in the Services) the hardware, software and data that comprises any of Customer’s information technology system upon which or related to which UltraLevel provides Services under this Agreement.
9.2 Integration. The Parties’ written Agreement, together with any written Purchase Order and/or Statement of Work agreed to in writing by the Parties, and together with and including these Terms and Conditions© as may be amended from time to time, constitute the entire agreement between and Customer. Section and subsection headings are included for convenience only and are not to be used to construe or interpret this Agreement.
9.3 Assignment. This Agreement may not be assigned by a Party without the prior written consent of the other Party.
9.4 Notice. Any notice provided for herein must be in writing and sent by overnight courier, or by registered or certified mail, postage prepaid, to the then current address of the receiving Party, and in addition must be sent via email transmission.
9.5 Execution, Acceptance and Communication. This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan. Any dispute or controversy between the parties which arises out of, or pertains to, this Agreement, or its performance or breach, shall be resolved by arbitration, conducted pursuant to the Rules of the American Arbitration Association. Said arbitration shall be filed, and conducted, in Oakland County, Michigan. A judgment may be entered on any resulting arbitration award, by a court of competent jurisdiction.
9.6 ARBITRATION OF DISPUTES; Governing Law and Forum. The Parties’ Agreement shall be governed by and construed in accordance with the laws of the State of Michigan. ANY DISPUTE OR CONTROVERSY BETWEEN THE PARTIES WHICH ARISES OUT OF, OR PERTAINS TO, THIS AGREEMENT OR ITS FORMATION, PERFORMANCE OR BREACH, SHALL BE RESOLVED BY BINDING ARBITRATION, CONDUCTED PURSUANT TO THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION. SAID ARBITRATION SHALL BE FILED AND CONDUCTED IN OAKLAND COUNTY, MICHIGAN. A JUDGMENT MAY BE ENTERED ON ANY RESULTING ARBITRATION AWARD, BY A COURT OF COMPETENT JURISDICITON. The Parties consent to the jurisdiction of and venue in the Circuit Court of Oakland County, Michigan, for entry of said judgment on arbitration award.
9.7 Relationship. The relationship between Customer and UltraLevel is that of independent contractors not that of employer/employee, partnership or joint venture. Nothing contained in this Agreement, and no action by either party under this Agreement shall be construed to create any partnership or joint venture or to create any joint ownership or joint obligation in any respect.
9.8 No Waiver. The failure of either Party at any time to enforce any of the provisions of this Agreement will in no way be construed as a waiver of such provisions.
9.9 Force Majeure. No liability shall result to Customer or UltraLevel from delay in performance or nonperformance caused by circumstances beyond the reasonable control of Customer or UltraLevel including, any Force Majeure.
9.10 Severability. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement. In the event that any provision of this Agreement is determined to be invalid, unenforceable, or otherwise illegal, such provision will be deemed restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the Parties.
Last Updated 15 August 2018