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Terms & Conditions

I. Terms and Conditions Applicable to Each SMC Quotation.

1.1. SALE, SERVICE AND TRAINING AGREEMENT.

The goods or products sold, services provided and Training provided are sold or provided in accordance with the terms and conditions in SMC’s Quotation (“Seller”) and these additional terms and conditions (‘Terms”), and such other terms as Seller agrees to in writing, all of which shall be the Agreement of the parties with respect to the subject matter of Seller’s Quotation. In the event of any conflict in the terms stated in the Quotation, and these Terms the Quotation shall control. 

1.2. ACCEPTANCE.

This sale is conditioned upon Purchaser’s written acceptance of all terms and conditions of the Quotation and these Terms, and Purchaser’s issuance of a purchase order in response to the Quotation shall be Purchaser’s written acceptance. Seller rejects any and all terms in any purchase order or other document of Purchaser which are in addition to, different from, or inconsistent with the Quotation or these Terms. This Quotation is an offer, subject to final approval by Seller. The offer may be withdrawn at any time prior to Seller’s final approval, and shall expire automatically if not accepted within 30 days from the date hereof, unless otherwise agreed to by Seller.

1.3. PAYMENT.

Payment is due at the time of the order unless credit terms are provided on the face hereof, or otherwise provided by Seller. Any balance not paid when due shall draw interest at the rate of 1.5% per month (18% A.P.R.) on the average daily balance until paid or the highest rate allowed by applicable law, whichever is less. Notwithstanding paragraph 1.9 hereof, the parties agree that Seller may bring suit to collect any unpaid balance due from Purchaser (or arbitrate at Seller’s option), and Purchaser shall pay all attorney fees and court costs incurred by Seller in connection with the suit to collect such unpaid balance, and all of Purchaser’s defenses, avoidances and counterclaims (other than the defense of payment) shall be submitted to arbitration as provided in paragraph 1.9.  All payments shall be made in U.S. currency.

1.4. CREDIT APPROVAL.

If Seller allows credit terms to Purchaser, the obligations of Seller hereunder, shall be subject to the condition precedent that Seller’s credit department approves the credit of Purchaser.

1.5. FORCE MAJEURE.

Seller shall not be liable for any delay in shipment of the goods, provision of services or training due to delays caused by its suppliers, and causes beyond its control, including without limitation, acts of God, wars, terrorism, sabotage, casualties, accidents, labor disputes or shortages, governmental laws, ordinances, rules or regulations (such as priorities, requisitions, allocations and price adjustment restrictions), or an inability to obtain personnel, material, equipment or transportation.

1.6. TAXES AND DUTIES.

Purchaser shall pay, in addition to the purchase price, all sales, use and excise taxes, tariffs, duties and other charges imposed by any country, state, locality or other political subdivision in connection with the sale of the goods or provision of the services or training. 

1.7. LIMITATION OF LIABILITY. 

The parties’ exclusive remedy for claims arising hereunder shall be for damages.  Under no circumstances shall either party be liable to the other party for special, indirect, incidental, punitive, exemplary, or consequential damages. The remedies of the Purchaser, and any other party, arising out of or related to the goods, services, or training set forth herein are exclusive, and the liability of the Seller with respect to the goods, services, or training or anything done in connection therewith, or from the manufacture, sale, delivery, resale, installation or use of any of the goods sold by Seller, services or training provided, whether arising out of contract, negligence, strict liability, tort, or under any warranty, statute, regulation, or otherwise, shall not, exceed the price charged by Seller for the portion of the goods services, or training giving rise to such liability. 

1.8. REMEDIES.

The remedies provided herein are exclusive and in lieu of any other remedies allowed by law or in equity. The failure of a party to exercise any right or remedy shall not constitute a waiver of the right to exercise that, or any other remedy; and no waiver of any breach or non-compliance of any provision herein shall operate as a waiver of any other breach or non-compliance of the same or any other provision.

1.9. APPLICABLE LAW, ARBITRATION.

This Agreement is be governed by the internal laws of the State of Missouri. The parties agree that any proceedings in court or hearings in arbitration shall be brought exclusively in Springfield, Missouri. THE PARTIES EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY. Except as provided in paragraph 3 hereof, any dispute, controversy or claim arising out of or relating to this Agreement or any purchase order issued by Purchaser and accepted by Seller hereunder (including, but not limited to, any dispute relating to the existence, interpretation, breach or termination hereof or thereof, and the validity and enforceability of this agreement to arbitrate claims) that cannot be resolved by the parties shall be resolved by binding arbitration administered by, and in accordance with the Construction Industry Rules of the American Arbitration Association. The arbitration award may reduced to judgment by any court having jurisdiction thereof.  The cost of the arbitration shall be shared equally between the parties, and each party shall bear its own attorney fees and expenses. 

1.10. MISCELLANEOUS.

This Agreement is a complete and exclusive statement of the terms of the Parties’ agreement. No course of prior dealings between the parties and no usage of trade shall be relevant to supplement or explain any term used herein, and no modification shall be binding unless made in a writing and signed by the party to be charged. No claim or right arising out of a breach of this Agreement can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by separate consideration and is in a writing signed by the party to be charged. Neither party shall assign its rights or delegate its duties under this Agreement. Facsimile and E-mail signatures of the parties shall constitute original signatures for all purposes.  The invalidity of any portion of this Agreement shall not affect the validity of any remaining portions thereof. The parties at all times shall be independent. Neither party is an employee, joint venturer, agent or partner of the other, and neither party may create or bind the other or create obligations or liabilities, express or implied on behalf of or in the name of the other. Certain goods may be accompanied by OSHA required MSDS prepared by the Seller’s vendor, and Seller makes no warranty or recommendation with respect to the information contained in any MSDS, and the Purchaser is responsible for any reliance on such information and the use or application of such goods. 

THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION, WHICH MAY BE ENFORCED BY THE PARTIES.

II. Terms and Conditions Applicable to the Sale of Goods and Products, in Addition to Section I. Above.

2.1. DRAWINGS.

Any Seller drawings approved by Purchaser and its agents and representatives, shall be deemed to be in conformance with all project drawings and specifications provided by the Purchaser. Any delay by Purchaser in approving drawings submitted by Seller may delay the shipment date and may increase the price of the goods.

2.2. SHIPMENT.

Any shipment date designated on the face hereof is estimated and not guaranteed. Seller may ship the goods by any mode, and in full or partial shipments. Seller shall not be liable for any delay in shipment of the goods due events of Force Majeure. 

2.3. TITLE, RISK OF LOSS.

The goods shall be shipped FOB Seller’s plant, and title to the goods and all risks of loss with respect to the goods shall transfer to the Purchaser after they have been placed in the possession of a carrier.

2.4. INSPECTION. 

Purchaser shall inspect the goods at the time and place of delivery and Purchaser agrees that such occasion shall constitute a reasonable opportunity for its full inspection.  The parties agree that Purchaser’s failure to reject the goods within three (3) business days shall constitute acceptance of the goods.

2.5. WARRANTIES.

Seller makes no representation and disclaims all warranties, express or implied, for any product manufactured by a third party which may be sold by Seller, such products are sold by Seller, AS IS, and for such products the warranty, if any, shall be the warranty provided by the original manufacturer, and Purchaser shall look solely to the original manufacturer for any warranty claim. For goods manufactured by Seller, Seller warrants that such goods shall be free of defects in workmanship for a period of one year from the date of shipment, or such other period as provided on the face hereof, and if goods do not conform to this warranty, Seller at its election shall repair or replace the goods, or refund the purchase price for the portion of the goods giving rise to the warranty claim, and in all cases the cost to repair or replace other property, the cost of removing and installing the goods, and freight are not included in this warranty; and  provided that this warranty does not extend to products not of Seller’s manufacture, and as to such products Seller conveys to Purchaser the warranty, if any, provided by Seller’s vendor. THIS WARRANTY IS EXCLUSIVE, AND SELLER DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHER WARRANTY, WHETHER EXPRESSED OR IMPLIED. THESE DISCLAIMERS AND EXCLUSIONS, AND THE LIMITATION OF LIABILITY SET FORTH IN SECTION 1.7 HEREOF APPLY EVEN IF THE EXPRESS WARRANTIES AND THE LIMITED REMEDIES PROVIDED FAIL OF THEIR ESSENTIAL PURPOSE. Oral statements by seller’s employees or representatives do not constitute warranties, shall not be relied upon by Purchaser, and are not part of this Agreement. If Seller provides a warranty, it is conditioned upon Purchaser’s payment in full. Any warranty offered by Purchaser to its customers, in excess of that offered by Seller, shall be the responsibility of Purchaser. 

2.6. CANCELLATION AND RETURNS.

Purchaser may not cancel this agreement, or return goods without the prior consent of Seller. For special order goods the cancellation charge shall equal the total selling price less the estimated direct labor and materials not expended less the salvage value of materials already purchased, and for returns, the re-stocking fee may equal the price of the goods. For stock items, the cancellation and return charge shall equal a re-stocking fee of 25% of the total selling price, provided that in the case of a return the goods are returned, unused, undamaged, in the original unopened, unmarked and undamaged packaging, of current design and series, and such return is received by Seller, freight prepaid, not later than 30 days after Seller’s consent to the return. Goods cut to length or modified to Purchaser’s specifications, obsolete, discontinued or close-out items, broken or fragile items, custom goods or goods not returnable to Seller’s vendor, or goods without Seller’s invoice number, are not returnable for credit.

III. Terms and Conditions Applicable to Services, in Addition to Section I. Above.

3.1 SOW.

These Terms and Conditions (‘Terms”) cover the sale by SMC of the Products and Services to be performed set forth in a Statement of Work (“SOW”)between SMC and Client, and such other terms as SMC agrees to in writing, all of which shall be the Agreement of the parties. In the event of any conflict in the terms stated in the SOW, and these Terms the SOW shall control.

3.2. WARRANTIES.

(a) Warranty for Services: SMC warrants to Client for 12 months from substantial completion, that the Services will perform as stated in the SOW provided that the operating conditions and use of the Services are in accordance with any standards set forth in the SOW.  Repaired or replacement Services provided pursuant to subparagraph (c) below are similarly warranted for the remainder of the original warranty term.

(b) Products Warranty: SMC warrants to Client for the period of 12 months from shipment, that the Products will be free of defects in material, fabrication, and workmanship provided that the operating conditions and use of the Products are in accordance with any standards set forth in the Statement of Work. Repaired or replacement Products provided pursuant to subparagraph (c) below are similarly warranted for the remainder of the original warranty term.  For any Product manufactured by a third party which may be sold by SMC in the performance of the Services, or otherwise, the warranty, if any, shall be the warranty provided by the original manufacturer, and Client shall look solely to the original manufacturer for any warranty claim.

(c) Remedies: Remedies under this warranty will be limited to, at SMC’s discretion, replacement, repair, re-performance, modification, or issuance of a credit for the purchase price of the Services or Products involved, but only after SMC’s receipt of Client’s written notification of non-conformity. Replacement Products, at SMC’s discretion, may be new, remanufactured, refurbished, or reconditioned. If the repair, re-performance, or replacement does not cure the defective performance, Client may request emergency on-site service, which will be at SMC’s expense (consisting of time, travel, and expenses incurred by SMC related to such services). If the defective performance is not due to warranted defects in the Services or Products, the on-site service will be at Client’s expense. On-site warranty services performed at SMC expense shall not include removal or reinstallation costs related to large-scale assemblies such as motors or transformers. The foregoing will be the exclusive remedies for any breach of warranty or breach of contract arising from warranted defects.

 (d) General: Warranty satisfaction is available only if (i) SMC is provided prompt written notice of the warranty claim, prior to the expiration of the warranty period and (ii) SMC’s examination discloses that any alleged defect has not been caused by misuse, neglect, improper installation, operation, maintenance, repair, alteration, or modification by other than SMC, accident, or unusual deterioration or degradation of the Work or parts thereof due to physical environment or electrical or electromagnetic noise environment. THE ABOVE WARRANTIES ARE EXCLUSIVE, AND SMC DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHER WARRANTY, WHETHER EXPRESSED OR IMPLIED. THESE DISCLAIMERS AND EXCLUSIONS, AND THE LIMITATION OF LIABILITY SET FORTH IN SECTION1.7 HEREOF APPLY EVEN IF THE EXPRESS WARRANTIES AND THE LIMITED REMEDIES PROVIDED FAIL OF THEIR ESSENTIAL PURPOSE. SMC’s warranties are conditioned upon Client’s payment in full.

3.3. ACCEPTANCE. 

(a) Acceptance of Services and Products occurs either (i) on the date the Services or Products conform to acceptance criteria in the SOW or is otherwise beneficially used by Client, but in no event later than 30 days from start-up; or (ii) if no acceptance criteria are specified in the SOW then acceptance occurs upon Delivery.  

(b) Interim Approvals. Any SMC provided interim deliverable requiring Client approval pursuant to the SOW will be deemed accepted if formal Client approval, written or as otherwise required, is not received by SMC within two calendar weeks after the date submitted.

3.4. BUYER SPECIFICATION.

Unless otherwise specified in the SOW SMC does not warrant or indemnify and will not otherwise be liable for (i) design, materials, or construction criteria furnished or specified by Client and incorporated into the Services or Products, (ii) products supplied by, made by or sourced from Client or other manufacturers or vendors specified by Client; or (iii) commercially available computer software, hardware, and electrical components. Any warranty or indemnity applicable to such Client supplied/specified products will be limited solely to the warranty or indemnity, if any, extended by the original manufacturer or vendor.

3.5. STANDARD SOFTWARE. 

Software comprised of firmware or standard software (including, but not limited to packaged software, templates, models and library files, and commercially available software) (collectively “Standard Software”) is subject to Client’s acceptance of additional terms and conditions set forth in separate third-party click-wrap license agreements provided with such Standard Software. Such terms and conditions shall be the exclusive terms and conditions applicable to such Standard Software, excluding Client’s obligation to pay any license fee which shall be identified in the SOW.

3.6. CANCELLATION.

Either party may terminate this Agreement on ten (10) days prior written notice; provided that Client shall (i) pay for any Services performed and Products provided before receipt of notice and any additional costs of termination including third-party commitments, reasonable profit, and overhead as may be more specifically provided in the SOW, upon submission of SMC's invoices. 

3.7. EMPLOYEE SOLICITATION.

During the term of this Agreement and for 12 months following its termination, Client agrees that if it hires any employee of SMC with whom the Client has had contact as a result of this Agreement, it will pay SMC 100% of the hired SMC employee’s annual SMC salary, on demand by SMC as liquidated damages, with the parties agreeing that SMC’s actual damages would be difficult, if not impossible, to determine.

14. CONFIDENTIALITY.

During the term of this Agreement and for a period of three (3) years thereafter, each party shall maintain in strict confidence all technical and business data and information disclosed by one party to the other that is marked “Confidential” and will not use or reveal such information without the prior written consent of the disclosing party, including the terms of this Agreement, except on a confidential basis as compelled by law or a court of competent jurisdiction.

IV. Terms and Conditions Applicable to Training, in Addition to Section I Above.

4.1. TRAINING FEE AND EXPENSES.

The Training Fees and travel, meals, lodging, tolls, parking, applicable sales tax, and similar expenses shall be as provided in SMC’s Quotation. 

4.2. TRAINING SCHEDULE.

SMC shall provide the Services at the location and on the dates provided in SMC’s Quotation or as otherwise agreed to by SMC and Purchaser. SMC shall not be liable for any delays caused by events beyond its control. 

4.3. WARRANTIES.

SMC warrants that the Services will be performed in a manner consistent with the recommendations of its vendors. If SMC fails to comply with this warranty, it shall re-perform the Services, at its expense, provided that SMC receives notice of such failure from Purchaser within thirty (30) days after the Services have been completed.  WHILE SMC BELIEVES THAT THE TRAINING MATERIALS USED IN THE PERFORMANCE OF THE SERVICES ARE ACCURATE AND CORRECT, SMC DOES NOT WARRANT THE ACCURACY OR THE CORRECTNESS OF SUCH MATERIALS. SMC DOES NOT WARRANT THE RESULTS OF THE SERVICES PERFORMED HEREUNDER. THIS WARRANTY IS EXCLUSIVE, AND SMC DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHER WARRANTY, WHETHER EXPRESSED OR IMPLIED. THESE DISCLAIMERS AND EXCLUSIONS, AND THE LIMITATION OF LIABILITY SET FORTH IN SECTION1.7 HEREOF APPLY EVEN IF THE EXPRESS WARRANTIES AND THE LIMITED REMEDIES PROVIDED FAIL OF THEIR ESSENTIAL PURPOSE. SMC’s warranties are conditioned upon Purchaser’s payment in full.

4.4. FACILITIES.

Unless otherwise provided in SMC’s Quotation, the Services shall be provided at a location provided by Purchaser. Purchaser shall be responsible for providing safe, sufficient and appropriate space to conduct such Services.

4.5. HOLD HARMLESS.

Purchaser shall protect, defend, indemnify and hold SMC and its officers, directors, employees, agents and contractors harmless against the claims of any person or entity arising out of or relating in any way to the Services, including, but not limited to subrogation claims, except to the extent caused by the gross negligence or willful misconduct of SMC or those for whom it is liable.

accordance with the Construction Industry Rules of the American Arbitration Association. The arbitration award may reduced to judgment by any court having jurisdiction thereof.  The cost of the arbitration shall be shared equally between the parties, and each party shall bear its own attorney fees and expenses. 

1.10. MISCELLANEOUS.

This Agreement is a complete and exclusive statement of the terms of the Parties’ agreement. No course of prior dealings between the parties and no usage of trade shall be relevant to supplement or explain any term used herein, and no modification shall be binding unless made in a writing and signed by the party to be charged. No claim or right arising out of a breach of this Agreement can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by separate consideration and is in a writing signed by the party to be charged. Neither party shall assign its rights or delegate its duties under this Agreement. Facsimile and E-mail signatures of the parties shall constitute original signatures for all purposes.  The invalidity of any portion of this Agreement shall not affect the validity of any remaining portions thereof. The parties at all times shall be independent. Neither party is an employee, joint venturer, agent or partner of the other, and neither party may create or bind the other or create obligations or liabilities, express or implied on behalf of or in the name of the other. Certain goods may be accompanied by OSHA required MSDS prepared by the Seller’s vendor, and Seller makes no warranty or recommendation with respect to the information contained in any MSDS, and the Purchaser is responsible for any reliance on such information and the use or application of such goods. 

THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION, WHICH MAY BE ENFORCED BY THE PARTIES.

II. Terms and Conditions Applicable to the Sale of Goods and Products, in Addition to Section I. Above.

2.1. DRAWINGS.

Any Seller drawings approved by Purchaser and its agents and representatives, shall be deemed to be in conformance with all project drawings and specifications provided by the Purchaser. Any delay by Purchaser in approving drawings submitted by Seller may delay the shipment date and may increase the price of the goods.

2.2. SHIPMENT.

Any shipment date designated on the face hereof is estimated and not guaranteed. Seller may ship the goods by any mode, and in full or partial shipments. Seller shall not be liable for any delay in shipment of the goods due events of Force Majeure. 

2.3. TITLE, RISK OF LOSS.

The goods shall be shipped FOB Seller’s plant, and title to the goods and all risks of loss with respect to the goods shall transfer to the Purchaser after they have been placed in the possession of a carrier.

2.4. INSPECTION. 

Purchaser shall inspect the goods at the time and place of delivery and Purchaser agrees that such occasion shall constitute a reasonable opportunity for its full inspection.  The parties agree that Purchaser’s failure to reject the goods within three (3) business days shall constitute acceptance of the goods.

2.5. WARRANTIES.

Seller makes no representation and disclaims all warranties, express or implied, for any product manufactured by a third party which may be sold by Seller, such products are sold by Seller, AS IS, and for such products the warranty, if any, shall be the warranty provided by the original manufacturer, and Purchaser shall look solely to the original manufacturer for any warranty claim. For goods manufactured by Seller, Seller warrants that such goods shall be free of defects in workmanship for a period of one year from the date of shipment, or such other period as provided on the face hereof, and if goods do not conform to this warranty, Seller at its election shall repair or replace the goods, or refund the purchase price for the portion of the goods giving rise to the warranty claim, and in all cases the cost to repair or replace other property, the cost of removing and installing the goods, and freight are not included in this warranty; and  provided that this warranty does not extend to products not of Seller’s manufacture, and as to such products Seller conveys to Purchaser the warranty, if any, provided by Seller’s vendor. THIS WARRANTY IS EXCLUSIVE, AND SELLER DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHER WARRANTY, WHETHER EXPRESSED OR IMPLIED. THESE DISCLAIMERS AND EXCLUSIONS, AND THE LIMITATION OF LIABILITY SET FORTH IN SECTION 1.7 HEREOF APPLY EVEN IF THE EXPRESS WARRANTIES AND THE LIMITED REMEDIES PROVIDED FAIL OF THEIR ESSENTIAL PURPOSE. Oral statements by seller’s employees or representatives do not constitute warranties, shall not be relied upon by Purchaser, and are not part of this Agreement. If Seller provides a warranty, it is conditioned upon Purchaser’s payment in full. Any warranty offered by Purchaser to its customers, in excess of that offered by Seller, shall be the responsibility of Purchaser. 

2.6. CANCELLATION AND RETURNS.

Purchaser may not cancel this agreement, or return goods without the prior consent of Seller. For special order goods the cancellation charge shall equal the total selling price less the estimated direct labor and materials not expended less the salvage value of materials already purchased, and for returns, the re-stocking fee may equal the price of the goods. For stock items, the cancellation and return charge shall equal a re-stocking fee of 25% of the total selling price, provided that in the case of a return the goods are returned, unused, undamaged, in the original unopened, unmarked and undamaged packaging, of current design and series, and such return is received by Seller, freight prepaid, not later than 30 days after Seller’s consent to the return. Goods cut to length or modified to Purchaser’s specifications, obsolete, discontinued or close-out items, broken or fragile items, custom goods or goods not returnable to Seller’s vendor, or goods without Seller’s invoice number, are not returnable for credit.

III. Terms and Conditions Applicable to Services, in Addition to Section I. Above.

3.1 SOW.

These Terms and Conditions (‘Terms”) cover the sale by SMC of the Products and Services to be performed set forth in a Statement of Work (“SOW”)between SMC and Client, and such other terms as SMC agrees to in writing, all of which shall be the Agreement of the parties. In the event of any conflict in the terms stated in the SOW, and these Terms the SOW shall control.

3.2. WARRANTIES.

(a) Warranty for Services: SMC warrants to Client for 12 months from substantial completion, that the Services will perform as stated in the SOW provided that the operating conditions and use of the Services are in accordance with any standards set forth in the SOW.  Repaired or replacement Services provided pursuant to subparagraph (c) below are similarly warranted for the remainder of the original warranty term.

(b) Products Warranty: SMC warrants to Client for the period of 12 months from shipment, that the Products will be free of defects in material, fabrication, and workmanship provided that the operating conditions and use of the Products are in accordance with any standards set forth in the Statement of Work. Repaired or replacement Products provided pursuant to subparagraph (c) below are similarly warranted for the remainder of the original warranty term.  For any Product manufactured by a third party which may be sold by SMC in the performance of the Services, or otherwise, the warranty, if any, shall be the warranty provided by the original manufacturer, and Client shall look solely to the original manufacturer for any warranty claim.

(c) Remedies: Remedies under this warranty will be limited to, at SMC’s discretion, replacement, repair, re-performance, modification, or issuance of a credit for the purchase price of the Services or Products involved, but only after SMC’s receipt of Client’s written notification of non-conformity. Replacement Products, at SMC’s discretion, may be new, remanufactured, refurbished, or reconditioned. If the repair, re-performance, or replacement does not cure the defective performance, Client may request emergency on-site service, which will be at SMC’s expense (consisting of time, travel, and expenses incurred by SMC related to such services). If the defective performance is not due to warranted defects in the Services or Products, the on-site service will be at Client’s expense. On-site warranty services performed at SMC expense shall not include removal or reinstallation costs related to large-scale assemblies such as motors or transformers. The foregoing will be the exclusive remedies for any breach of warranty or breach of contract arising from warranted defects.

 (d) General: Warranty satisfaction is available only if (i) SMC is provided prompt written notice of the warranty claim, prior to the expiration of the warranty period and (ii) SMC’s examination discloses that any alleged defect has not been caused by misuse, neglect, improper installation, operation, maintenance, repair, alteration, or modification by other than SMC, accident, or unusual deterioration or degradation of the Work or parts thereof due to physical environment or electrical or electromagnetic noise environment. THE ABOVE WARRANTIES ARE EXCLUSIVE, AND SMC DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHER WARRANTY, WHETHER EXPRESSED OR IMPLIED. THESE DISCLAIMERS AND EXCLUSIONS, AND THE LIMITATION OF LIABILITY SET FORTH IN SECTION1.7 HEREOF APPLY EVEN IF THE EXPRESS WARRANTIES AND THE LIMITED REMEDIES PROVIDED FAIL OF THEIR ESSENTIAL PURPOSE. SMC’s warranties are conditioned upon Client’s payment in full.

3.3. ACCEPTANCE. 

(a) Acceptance of Services and Products occurs either (i) on the date the Services or Products conform to acceptance criteria in the SOW or is otherwise beneficially used by Client, but in no event later than 30 days from start-up; or (ii) if no acceptance criteria are specified in the SOW then acceptance occurs upon Delivery.  

(b) Interim Approvals. Any SMC provided interim deliverable requiring Client approval pursuant to the SOW will be deemed accepted if formal Client approval, written or as otherwise required, is not received by SMC within two calendar weeks after the date submitted.

3.4. BUYER SPECIFICATION.

Unless otherwise specified in the SOW SMC does not warrant or indemnify and will not otherwise be liable for (i) design, materials, or construction criteria furnished or specified by Client and incorporated into the Services or Products, (ii) products supplied by, made by or sourced from Client or other manufacturers or vendors specified by Client; or (iii) commercially available computer software, hardware, and electrical components. Any warranty or indemnity applicable to such Client supplied/specified products will be limited solely to the warranty or indemnity, if any, extended by the original manufacturer or vendor.

3.5. STANDARD SOFTWARE. 

Software comprised of firmware or standard software (including, but not limited to packaged software, templates, models and library files, and commercially available software) (collectively “Standard Software”) is subject to Client’s acceptance of additional terms and conditions set forth in separate third-party click-wrap license agreements provided with such Standard Software. Such terms and conditions shall be the exclusive terms and conditions applicable to such Standard Software, excluding Client’s obligation to pay any license fee which shall be identified in the SOW.

3.6. CANCELLATION.

Either party may terminate this Agreement on ten (10) days prior written notice; provided that Client shall (i) pay for any Services performed and Products provided before receipt of notice and any additional costs of termination including third-party commitments, reasonable profit, and overhead as may be more specifically provided in the SOW, upon submission of SMC's invoices. 

3.7. EMPLOYEE SOLICITATION.

During the term of this Agreement and for 12 months following its termination, Client agrees that if it hires any employee of SMC with whom the Client has had contact as a result of this Agreement, it will pay SMC 100% of the hired SMC employee’s annual SMC salary, on demand by SMC as liquidated damages, with the parties agreeing that SMC’s actual damages would be difficult, if not impossible, to determine.

14. CONFIDENTIALITY.

During the term of this Agreement and for a period of three (3) years thereafter, each party shall maintain in strict confidence all technical and business data and information disclosed by one party to the other that is marked “Confidential” and will not use or reveal such information without the prior written consent of the disclosing party, including the terms of this Agreement, except on a confidential basis as compelled by law or a court of competent jurisdiction.

IV. Terms and Conditions Applicable to Training, in Addition to Section I Above.

4.1. TRAINING FEE AND EXPENSES.

The Training Fees and travel, meals, lodging, tolls, parking, applicable sales tax, and similar expenses shall be as provided in SMC’s Quotation. 

4.2. TRAINING SCHEDULE.

SMC shall provide the Services at the location and on the dates provided in SMC’s Quotation or as otherwise agreed to by SMC and Purchaser. SMC shall not be liable for any delays caused by events beyond its control. 

4.3. WARRANTIES.

SMC warrants that the Services will be performed in a manner consistent with the recommendations of its vendors. If SMC fails to comply with this warranty, it shall re-perform the Services, at its expense, provided that SMC receives notice of such failure from Purchaser within thirty (30) days after the Services have been completed.  WHILE SMC BELIEVES THAT THE TRAINING MATERIALS USED IN THE PERFORMANCE OF THE SERVICES ARE ACCURATE AND CORRECT, SMC DOES NOT WARRANT THE ACCURACY OR THE CORRECTNESS OF SUCH MATERIALS. SMC DOES NOT WARRANT THE RESULTS OF THE SERVICES PERFORMED HEREUNDER. THIS WARRANTY IS EXCLUSIVE, AND SMC DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHER WARRANTY, WHETHER EXPRESSED OR IMPLIED. THESE DISCLAIMERS AND EXCLUSIONS, AND THE LIMITATION OF LIABILITY SET FORTH IN SECTION1.7 HEREOF APPLY EVEN IF THE EXPRESS WARRANTIES AND THE LIMITED REMEDIES PROVIDED FAIL OF THEIR ESSENTIAL PURPOSE. SMC’s warranties are conditioned upon Purchaser’s payment in full.

4.4. FACILITIES.

Unless otherwise provided in SMC’s Quotation, the Services shall be provided at a location provided by Purchaser. Purchaser shall be responsible for providing safe, sufficient and appropriate space to conduct such Services.

4.5. HOLD HARMLESS.

Purchaser shall protect, defend, indemnify and hold SMC and its officers, directors, employees, agents and contractors harmless against the claims of any person or entity arising out of or relating in any way to the Services, including, but not limited to subrogation claims, except to the extent caused by the gross negligence or willful misconduct of SMC or those for whom it is liable.

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