Terms and Conditions

MICROTECH WELDING CORP.

TERMS AND CONDITIONS

Effective July 1, 2018

1. The Agreement. Microtech Welding Corp., an Indiana corporation (“Microtech”), its employees, representatives, and contractors (collectively “Microtech”) shall arrange and provide certain welding services and such other services as may be requested by Customer (collectively the “Services”), subject to and in accordance with these terms and conditions (hereafter the “Agreement”).  For purposes of this Agreement, “Customer” shall mean the party identified on the proposal, quote, purchase order or invoice receiving the benefit of Services provided by Microtech.   Customer’s authorization to allow Microtech to proceed with the Services constitutes Customer’s acknowledgement of and agreement to all of the terms and conditions of this Agreement.
2. Entire Agreement. This Agreement constitutes the complete and exclusive agreement between Microtech and Customer with respect to the Services. The terms and conditions herein supersede any and all prior or contemporaneous communications, written or oral agreements, representations, and other understandings relating to the Services.  Any prior agreements or understandings between Microtech and Customer are merged into and are replaced by this Agreement alone.
3. Skills and Personnel. Microtech shall provide the skills and staff necessary to perform the Services in a professional and workmanlike manner.
4. Compliance with Laws. If Microtech is required to obtain any federal, state or local licenses, operating certificates, permits, or approvals to perform the Services, then Customer shall, at its own expense, procure and maintain for Microtech all necessary federal, state or local licenses, operating certificates, permits or approvals.
5. Price. The price for the Services shall be the amount quoted on the Microtech proposal or quote or if no such proposal or quote was provided, Microtech’s then current standard billing rate as is reflected on Microtech’s invoice. If Customer fails to dispute any charge on a Microtech invoice within ten (10) days of issue date of an invoice, then Customer shall be conclusively presumed to have accepted that charge and waive its rights to object to it.
6. Payment. Except as otherwise stated on a Microtech generated proposal, quote, or invoice, Customer shall pay Microtech for the Services within seven (7) days of the invoice date. If the invoice is not timely paid, then the following provisions shall apply:
   • Microtech may, at its option, suspend all Services until payments are current, and Microtech shall have no liability to Customer for any delay occasioned thereby;
   • Any late payments shall be subject to a $25.00 late fee, and any past due accounts shall have interest accruing at a rate of one and one half percent (1 ½ %) per month; and
   • Microtech shall be entitled to reimbursement of all costs and expenses, including, but not limited to, court costs and attorneys' fees, incurred in collecting payment of such unpaid invoices.
7. Cancellation. Customer may cancel Microtech’s Services only with reasonable, prior written notice to Microtech.  Customer and Microtech agree that 48 hours prior notice is reasonable notice.  Customer agrees to pay for any Services provided by Microtech up through the effective date of the notice of cancellation as well as to compensate Microtech for any reasonable expenses incurred by Microtech prior to the effective date of the cancellation. 
8. Liability. With respect to the Services provided hereunder, Microtech's liability shall be limited as follows:
   • MICROTECH'S MAXIMUM LIABILITY, AND CUSTOMER'S EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM ARISING OUT OF OR RELATED TO THE SERVICES, WHETHER ARISING IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE,  SHALL BE LIMITED TO THE AMOUNT THAT CUSTOMER ACTUALLY PAID FOR THE SERVICES;
   • Except for Customer's rights pursuant to paragraph 13, in no event shall Microtech be liable, whether in contract, tort, warranty, under any statute, or on any other basis for special, incidental, indirect, punitive, multiple or consequential damages sustained by Customer or any other person or entity arising out of Microtech’s performance or failure to perform its obligations relating to the Services, whether or not foreseeable and whether or not Microtech is advised of the possibility of such damages, including without limitation, damages arising from or related to downtime, loss of revenue, lost profits, lost goodwill, lost business, or any other financial loss; and
   • Customer waives any rights of offset for any alleged breach of contract and breach of warranty (except as set forth in paragraph 13), negligence, strict liability in tort, and/or other tort.
9. Claims; Lawsuits. Microtech shall not be liable for any claim or lawsuit of any type whatsoever arising out of or related to the Services, unless Customer takes the following actions:
   • Pays Microtech’s invoices in full for the Services upon which the claim is based;
   • Presents such claim (the “Claim”) to Microtech, in writing, within a reasonable time, not exceeding sixty (60) days after the Customer learned or should have learned of such claim.  The Claim should indicate the date(s) the Service(s) were provided, the type(s) of Service(s) provided, and a brief summary of the defective nature of the Service(s) provide; and
   • Initiates any lawsuit no later than one (1) year following the date when written notice is provided by Microtech to Customer that Microtech has disallowed the Claim or any part of the Claim.
   • Notwithstanding the foregoing, under no circumstances can a Claim be brought against Microtech relating to the Services more than one (1) year and one (1) month after the last date Microtech provided the Services, and under no circumstances may Customer file a lawsuit against Microtech relating to the Services more than two (2) years after the last date Microtech provided the Services.
     As a condition precedent to filing any lawsuit against Microtech, Customer agrees to participate in pre-suit mediation with Microtech under the following minimum terms:

     
     

     • Customer shall supply notice of its intent to mediate within thirty (30) days of Microtech’s denial of Customer’s Claim;
     • The mediator shall be an attorney certified as a mediator of commercial disputes and reasonably acceptable to both Customer and Microtech;
     • The mediation shall take place at a location within a one hundred (100) mile radius of Allen County, Indiana; 
     • The costs of the mediator shall be split evenly between Microtech and Customer, regardless of whether the mediation results in a settlement of the Claim; and
     • Such other reasonable terms as may be requested by either Customer or Microtech that are consistent with the Commercial Arbitration Rules established by the American Arbitration Association, provided however that such requested term(s) may not conflict with the minimum terms enunciated above in parts (i) through (iv), inclusive.
10. Microtech’s Remedies. In addition to Microtech's rights pursuant to paragraph 6, upon a breach by Customer of any promise, term, and/or condition contained in this Agreement, Microtech shall have the right, in addition to any other right Microtech may have at law or in equity, to take all or any of the following actions, at its sole option:
    • Suspend its performance of the Services, even if partial payment for the Services has been received;
    • Demand adequate assurance of due performance, including, but not limited to, the delivery to Microtech of a third-party bond satisfactory to Microtech;
    • Declare the unpaid balance of the price for the Services immediately due and payable; and/or
    • Collect from Customer all costs and expenses, including, but not limited to, court costs and attorneys' fees, incurred by Microtech in enforcing any right or remedy hereunder or any right or remedy available to it at law or in equity, that pertains in whole or in part to the Services, Customer’s compliance with the terms and conditions of this Agreement, and/or securing payment for the Services.
11. Risk of Loss. Unless otherwise stated, with respect to any goods required to be delivered as part of the Services, the risk of loss for those goods shall pass to Customer upon the actual delivery of the goods to Customer or any agent, broker, carrier, contractor, customer, employee, or representative of the Customer (collectively for purposes of this paragraph and paragraph 12 the “Customer”), regardless of whether the goods are accepted by Customer.
12. Indemnification. Customer shall defend, indemnify and hold Microtech, its shareholders, directors, managers, officers, employees, agents, successors and assigns (the “Microtech Indemnitees”) harmless from and against any and all losses, damages, injuries (including death), demands, liabilities, claims, fines, penalties, lawsuits, administrative proceedings, petitions, costs and expenses (including without limitation reasonable attorneys’ fees incurred in responding to any of the foregoing actions), made or brought against any of the Microtech Indemnitees arising from, related to, or caused by Customer’s acts or omissions, Customer’s breach of or failure to comply with the terms and conditions of this Agreement, or Customer’s failure to comply with any law.
13. Express Warranty; No Implied Warranties. Microtech warrants that its Services were performed in accordance with the specifications requested by Customer in writing and in a professional and workmanlike manner (the “Express Warranty”). This Express Warranty is subject to the Claims filing requirements set out under paragraph 9 of this Agreement.  Microtech disclaims all implied warranties, including the implied warranties of fitness for a particular purpose and for merchantability and this Express Warranty is in lieu of all implied warranties, including the implied warranties of fitness for a particular purpose and for merchantability.  The Express Warranty of Microtech is subject to the following further limitations:
    • The Customer must pay for the Services in full as a condition precedent to Microtech honoring the Express Warranty;
    • The Express Warranty shall apply only to the Customer and is not transferrable unless agree to in writing by Microtech prior to supplying the Services;
    • In no event shall Microtech be liable for anticipated or lost profits, consequential damages or down time incurred by Customer; and,
    • THE EXPRESS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND MICROTECH SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
    • Subject to the liability limitations set out in paragraph 8(a) of this Agreement, for any Service(s) Microtech determines to be defective, Microtech shall have the option to  (a) supply Customer with a refund of part or all of the cost of the Service(s) that are subject to the Claim, and/or (b) supply Customer with additional Service(s) at no additional charge to Customer to remedy the defective Service(s).
14. No solicitation or hire of Microtech’s employees.  For a period of one (1) year after the later of Microtech’s (1) last performance of any Services for Customer or (2) last shipment of any goods to Customer, Customer agrees not to solicit for hire, or actually hire, any person employed by Microtech at the time of the last Services performed, or last goods shipped, or at any point thereafter.
15. Modifications. Any alteration, addition, or modification to this Agreement shall be of no force and effect unless in writing and signed by a duly authorized representative of Microtech and Customer.
16. No Implied Waiver. A party’s failure to require, in one or more instances, the performance of any term or condition contained herein shall not be construed as a waiver or relinquishment of such party’s right to such performance or other future performance of such term or condition, and the other party’s obligations with respect thereto shall continue in full force and effect. A party’s consent to or approval of any act by the other party requiring such party’s consent or approval shall not be deemed to render unnecessary the obtaining of such consent or approval of any subsequent act.
17.  Severability. If any term or condition contained herein is determined to be invalid or illegal by any court of competent jurisdiction or other lawmaking authority, then, to the extent allowed by law, that term or condition shall be deemed automatically amended to the extent necessary to make it valid, or, if not allowed by law, such provision shall be severed from this Agreement, and all remaining terms and conditions contained herein shall remain in full force and effect.
18. Rules of Construction. There is no presumption against Microtech as the drafter of this Agreement. Customer has had the opportunity to review all terms and conditions of this Agreement and negotiate those terms prior to authorizing Microtech to proceed with the Services. Additionally, the headings contained in the Agreement are for convenience of reference only.
19. Independent Contractor. The parties hereto expressly agree that nothing in this Agreement or the provision of the Services by Microtech to Customer shall create a partnership, joint venture, agency, or any other similar relationship.  Each party enters into this Agreement for its own account, carrying out its respective business, separately and independently, limited only by the terms and conditions contained herein. No party may bind the other to any agreement or obligation with any other third party, without the other party’s written consent.
20. Binding Effect.  This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, and assigns, but shall not confer any rights or remedies upon any third-party beneficiaries or other persons who are not parties to this Agreement.
21. Assignment. Customer may not delegate or assign any duties or rights under this Agreement without Microtech’s prior written consent, which may be withheld for any or no reason. Any such delegation or assignment in violation of this paragraph shall be void.
22. Termination. Microtech may terminate this Agreement and have no obligation to provide the Services to Customer immediately upon the bankruptcy or insolvency of Customer or Customer’s breach of this Agreement. Microtech shall not be liable to Customer in such instances, for any costs, expenses, losses, damages, or liabilities arising out of such termination.
23. Notices. To be effective, all notices and other communications under this Agreement shall be in writing and sent to the intended recipient by personal delivery, by registered or certified mail, return receipt requested, or recognized overnight courier, at the party’s address as set forth on the Microtech invoice to Customer for the Services. Each party may change its address for receipt of notice by giving notice of such address change pursuant to this paragraph. Notice is given immediately upon personal delivery, three (3) business days following the date on which such notice is mailed in accordance with this paragraph or the next day following the date on which such notice is sent by overnight courier.
24. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana. The parties agree that venue shall be proper in the state and federal courts located in the County of Allen, State of Indiana, for any legal proceedings that may be necessary to enforce the terms and conditions of this Agreement.
25. Attorneys’ Fees.  In addition to its rights under paragraphs 6, 10 and 12 of this Agreement, if any legal action becomes necessary by Microtech to enforce the terms and conditions of this Agreement, or, alternatively, Microtech is responding to any legal action brought against it by Customer, Microtech shall be entitled to recover its reasonable attorneys’ fees and costs incurred if it is the substantially prevailing party in such action.