PLEASE READ THIS DOCUMENT CAREFULLY. IT CONTAINS AN ARBITRATION PROVISION AND OTHER VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS.
These terms and conditions apply to the purchase and sale of certain products and/or services (“Services”) provided by WheelHouse Solutions, Inc., a Missouri corporation having an address of 11971 Westline Industrial Drive, Suite 102, St. Louis, Missouri 63146 (hereinafter referred to as “us,” “we,” or “WheelHouse”) to the buyer of such Services (hereinafter referred to as “you” or “Customer”).
1. Services. In conjunction with each order you place for Services, we will send you a quote setting forth the nature of the Services and the estimated cost thereof (a “Quote”). By your acceptance of such Quote, whether online or otherwise, you agree to be bound by and accept these terms and conditions for each such transaction. If you do not agree to these terms and conditions, you should not obtain Services from us. We reserve the right to withdraw any Quote if not accepted within 10 days after delivery thereof.
2. Term. If you are purchasing a managed recurring service from WheelHouse, the initial term shall last for ninety (90) days from the date of final installation of the managed services listed within the Quote. The date of final installation will be sent to the Customer. Once the initial ninety (90) days have been completed, you may terminate the managed service with a sixty (60) day written Notice. Once you provide Notice, WheelHouse will immediately send a final invoice for the last sixty (60) days of service. The managed service may be terminated by WheelHouse upon a written one hundred eighty (180) day notice to the Customer. If either party terminates a managed service, WheelHouse will assist Customer in orderly termination of services. Customer agrees to pay WheelHouse the actual costs of rendering such assistance. If you are purchasing a one-time project or service there is no-term associated unless stated within the Quote in the Scope of Work section. By your acceptance of such Quote, whether online or otherwise, you agree to be bound by and accept these terms for each such transaction.
3. Payment, Expenses, and Taxes. Except as otherwise set forth herein, prior to our performance of the Services (including but not limited to the sale of hardware, software, equipment, or block time agreements), you must pay us the cost of such Services as set forth in Quote, including applicable charges for taxes and shipping; provided, however, that if the Services include charges for general labor, the Quote will set forth our then-current hourly rate for the Services to be provided, and you must pay the total cost of such Services immediately upon completion thereof, the final cost of which shall be evidenced by a service log provided to you on-site (as provided in Section 9, below). Additionally, as we may determine from time to time, the cost of any special Services will be billed up to 60% or more up-front upon acceptance of the Quote, with the remaining balance due immediately upon completion of the Services. To the extent that you do not fully pay for Services up-front, we reserve the right to request a down payment on a case-by-case basis, as set forth in the applicable Quote. If you fail to make any payment on time, we reserve the right to charge you a late fee charge of five percent (5%) per month (or the maximum amount permitted by law, whichever is less) applied against the overdue amount, and without waiving any of our rights, we will also be entitled to suspend or terminate the Services until such payment is received. If we hire an attorney to collect any unpaid amounts from you, or in the event that we hire an attorney to enforce any of our other rights under these terms and conditions, you must reimburse us for all related attorney fees, court costs, expenses of litigation, and other costs. You are responsible for all applicable taxes and fees assessed or imposed upon the Services provided or the amounts charged under these terms and conditions (and the applicable Quote), including any sales, use, excise, value-added, or comparable taxes, but excluding taxes related to our net assets or net income or for which you have provided a valid resale or exemption certificate.
4. Confidentiality. In the performance of the Services, Customer and WheelHouse may have access to or be exposed to information of the other party not generally known to the public, including, but not limited to software, product plans, marketing and sales information, customer lists, “know-how,” or trade secrets which may be designated as being confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential (collectively, “Confidential Information”). Confidential Information may not be shared with third parties unless such disclosure is to personnel of Wheelhouse or Customer, including employees, agents and subcontractors, on a “need-to-know” basis in connection with its performance under the Quote or these terms and conditions, so long as such personnel have agreed to treat such Confidential Information under terms at least as restrictive as those herein. Each party agrees to take the necessary precautions to maintain the confidentiality of Confidential Information by using at least the same degree of care as such party employs with respect to its own Confidential Information of a like-kind nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality, and shall only make such information available to its employees on a “need-to-know” basis. The foregoing shall not include information, which, (A) was known by one party prior to its receipt from the other or is or becomes public knowledge without the fault of the recipient, (B) is received by the recipient from a source other than WheelHouse or Customer, as applicable, or (C) a party is required to disclose in response to an order by a court or governmental agency, provided that advance notice of the disclosure is provided to other party. The confidentiality obligations of each party set forth herein shall continue for a period of three (3) years from the date of the last disclosure of Confidential Information by the other party.
5. Customer’s Responsibility. Many of our Services can be provided remotely. However, in the event that we perform Services for you on-site, you must provide us with a safe, clean, secure, and functional workplace that complies with all applicable laws, rules, and regulations. You must also provide us with timely access to the premises and to equipment, passwords, system login information, and past archives as we may reasonably request in order to deliver the Services. It is your responsibility to back up your data on your systems. You represent and warrant that you have all right, power, and authority to grant such access to us, and you agree to indemnify the WheelHouse Indemnified Parties (defined herein) for any and all Losses (defined herein) that the WheelHouse Indemnified Parties incur in connection with our access to your equipment, passwords, login information, records, and archives, except to the extent such Losses occur due to the gross negligence or intentional misconduct of a WheelHouse Indemnified Party. In the event that you fail to comply with this section, you agree that we have the right to increase the cost of any Service above the amount stated in the Quote.
6. Performance Indemnity. You agree to indemnify, defend, and hold harmless WheelHouse and its successors, assigns, officers, directors, employees, and agents (the “WheelHouse Indemnified Parties”) from and against any and all claims, actions, damages, liabilities, costs and expenses (“Losses”), including reasonable attorneys’ fees and expenses, that arise out of or are connected in any way to your breach of any provision set forth herein, except to the extent that such Loss arises due to the gross negligence or intentional misconduct of WheelHouse.
7. Warranty and Limitation of Liability. WE WARRANT THAT THE SERVICES WILL BE PERFORMED IN A GOOD AND WORKMANLIKE MANNER. IN ALL OTHER RESPECTS THE SERVICES ARE SOLD AND PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT THE SERVICES AVAILABLE WILL MEET YOUR REQUIREMENTS; THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE EFFECTIVE, ACCURATE OR RELIABLE; OR THE QUALITY OF ANY SERVICES WILL MEET YOUR EXPECTATIONS. WE DO NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING ANY LIABILITY FOR SERVICES THAT ARE NOT AVAILABLE FOR USE. IN NO EVENT SHALL WHEELHOUSE OR ITS AFFILIATED COMPANIES, AGENTS, SHAREHOLDERS, EMPLOYEES, DIRECTORS, OR OFFICERS (COLLECTIVELY, OUR “AFFILIATES”) HAVE ANY OBLIGATIONS OR LIABILITIES TO YOU OR ANY OTHER PERSON FOR LOSS OF PROFITS, FOR LOSS OF BUSINESS OR USE, DATA LOSS, OR FOR INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER THEORY OR FORM OF ACTION, EVEN IF WE OR OUR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF, ARISING OUT OR IN CONNECTION WITH THE SALE, DELIVERY, USE, REPAIR OR PERFORMANCE OF THE SERVICES. NO EMPLOYEE OR REPRESENTATIVE OF WHEELHOUSE IS AUTHORIZED TO MODIFY THIS LIMITATION, AND THIS LIMITATION SHALL IN NO WAY BE MODIFIED BY THE INDEMNIFICATION PROVISIONS SET FORTH IN OTHER SECTIONS HEREIN. OUR SOLE AND ENTIRE MAXIMUM LIABILITY, FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY YOU FOR THE SERVICES YOU HAVE ORDERED.
The Services are not fault-tolerant and are not designed or intended for use in hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life-support machines, or any other application in which the failure of the Services could lead directly to death, personal injury, or severe physical or property damage (collectively, “High-Risk Activities”). We expressly disclaim any express or implied warranty of fitness for High-Risk Activities.
8. Independent Contractor Status. WheelHouse and Customer are independent contractors, and nothing herein shall be deemed to create a partnership, joint venture, or any type of agency relationship. In the absence of an express writing to the contrary, neither Wheelhouse nor Customer has the authority to bind the other or to make representations or warranties on the other’s behalf.
9. Employees. This Agreement does not and will not be construed to entitle you or any of your employees to any benefit, privilege or other amenities of employment by us. Our employees performing the Services will be and remain the employees, agents, subcontractors, or representatives of WheelHouse.
10. Service Log. In the event that we perform services on-site, our employee or contractor will present a service log to you for verification and signature at the end of each site visit. Your signature thereon indicates acknowledgment of our time spent performing the Services, and the total labor cost shall be calculated based upon the hourly rate stated in the Quote. Summary of Block Time Statements and invoices will be generated on a monthly basis for your review and approval.
11. Assignment. Neither these terms and conditions nor any interest herein may be assigned, in whole or in part, by you without our prior written consent.
12. Notice. Wherever under these terms and conditions one party is required or permitted to give notice to the other, such notice shall be deemed received when personally delivered by hand or by overnight mail or courier service, or three (3) days after being sent via United States certified mail, return receipt requested, to our address in the first paragraph above or to your address on file. Either party may from time to time change its notification address by giving the other party prior written notice of the new address and the effective date thereof.
13. Force Majeure. In addition to any excuse provided by applicable law, we shall be excused from liability for non-delivery or delay in delivery of Services arising from any event beyond our reasonable control, whether or not foreseeable by either party, including but not limited to, labor disturbance, war, acts of terrorism, fire, accident, adverse weather, inability to secure transportation, governmental act or regulation, and other causes or events beyond our reasonable control, whether or not similar to those which are enumerated above.
14. Entire Agreement. These terms and conditions and the Quote constitute the entire agreement and understanding between us concerning the subject matter hereof and supersede all prior agreements and understandings of the parties with respect thereto. These terms and conditions may NOT be altered, supplemented, or amended by the use of any other document(s) other than the Quote. Any attempt to alter, supplement or amend this document or to enter an order for Services which are subject to additional or altered terms and conditions shall be null and void, unless otherwise agreed to in a written agreement signed by you and us, which must be reflected by an updated Quote. Our failure to require your performance of any obligations hereunder shall in no way affect our rights to require such performance at any time thereafter or alter our rights under the laws of the United States of America and the laws of the State of Missouri.
15. Severability. The invalidity or unenforceability of any term or condition of this agreement shall not affect the validity and enforceability of the remainder of this agreement, or any of its other terms, and such other terms shall be construed as though such invalid or unenforceable term was not included herein.
16. Governing Law. Each of us agrees that this contract shall be governed by the statutes and laws of the State of Missouri and, with respect to any actions for injunctive or other equitable relief, each of us hereby submits to the exclusive personal jurisdiction and venue of the circuit courts of St. Louis County, Missouri. The prevailing party in any suit brought hereunder for injunctive or other equitable relief shall be entitled to recover its reasonable attorneys’ fees and costs. All other actions shall be resolved via binding arbitration, as provided below.
17. Arbitration. For any dispute you have with us, you agree to first contact us and attempt to resolve the dispute with us informally. If we cannot resolve the dispute with you informally, we each agree to resolve any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to this agreement of terms and conditions by binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein. Unless we agree otherwise, the arbitration will be conducted in St. Louis County, Missouri. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules, except that we will pay for your initial and reasonable filing, administrative, and arbitrator fees if your claim for damages does not exceed $75,000 and is non-frivolous (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this section shall prevent either party from seeking injunctive or other equitable relief from the courts and a request for such relief by a party hereto shall not be deemed a waiver of the agreement to arbitrate set forth herein. All discussions, negotiations and any other communications of information or materials pursuant to this section, including the arbitration proceedings and award, are Confidential Information and shall be treated as compromise and settlement negotiations under the Federal Rules of Evidence and state rules of evidence.
ALL ARBITRATION CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, EACH OF US ARE WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
18. Third Party Products & Warranties. “Third Party Products” means any third-party hardware, services or software. You acknowledge that some manufacturers’ warranties or service contract terms and conditions for Third Party Products may become void if we—or anyone else other than the manufacturer or its authorized representative—provide Services for or work on the Third Party Products (such as providing maintenance and repair services). WE DO NOT TAKE RESPONSIBILITY AND YOU HEREBY RELEASE US FROM ANY SUCH RESPONSIBILITY FOR THIRD PARTY WARRANTIES RELATING TO THIRD PARTY PRODUCTS OR FOR ANY EFFECT THAT OUR SERVICES MAY HAVE ON THOSE WARRANTIES. Except as agreed to in writing between Customer and Wheelhouse, Third Party Products shall be exclusively subject to terms and conditions between you and the applicable third party. You release us from any liability respecting Third Party Products and you agree to look exclusively to the third party provider for any damages or liability with respect to the provision of such Third Party Products.
Except as otherwise specifically agreed to in a Quote, you represent that you have authority to authorize and do hereby authorize us to copy, install, and modify, when necessary and as required by the applicable Quote, all Third Party Products, including software, to be used in the Services or to be copied or stored for subsequent re-installation of a backup system or data. You warrant to us that you have obtained all licenses, consents, regulatory certifications, and approvals required to give us and our employees and subcontractors such rights or licenses to access, copy, distribute, use and/or modify (including creating derivative works) or install any Third Party Products to be used in the Services, without infringing the ownership or license rights (including patent and copyright) of the providers or owners of such products.
19. Proprietary Rights. Except as otherwise set forth herein or as may be specifically agreed to in a Quote, we will retain exclusive ownership in all Deliverables created by us hereunder and will own all intellectual property rights, title and interest in any ideas, concepts, know-how, documentation or techniques developed by us. Subject to payment in full for the applicable Services, we grant you a non-exclusive, non-transferable, royalty-free right to use the Deliverables solely in the country(ies) in which you do business and solely for your internal use. “Deliverables” means the tangible and intangible materials, including reports, studies, base cases, drawings, findings, manuals, procedures and recommendations that are prepared by us or our employees or subcontractors in the course of performing the Services.
We retain all intellectual property rights with respect to the processes, tools and software related to the Services. Any use of same by you, including the execution, reverse engineering, decompilation, reproduction, modification, distribution, transmission, republication, display, transfer or performance, except as specifically permitted in writing by us during the term of Services is prohibited.
20. Software License. Your use of Software in connection with our provision of Services is subject to the terms accompanying the Software. “Software” includes software locally installed on your systems and software remotely accessed by you, or that we use to remotely access your systems, through the Internet or other means (including, but not limited to websites, Internet portals and “cloud-based” software services).
21. Updates to Terms and Conditions. We reserve the right to update these terms and conditions at any time; however, your rights and obligations shall be as provided in the version of the terms and conditions in effect at the time of your purchase of the Services in question.
22. Non-Solicitation. During the Term and for a period of one year thereafter (collectively, the Non-solicitation Period), Customer shall not directly or indirectly, individually or on behalf of any person, aid or endeavor to solicit or induce any of WheelHouse’s or its affiliates employees to leave their employment with the WheelHouse or such affiliates in order to accept employment with Customer or any other person, corporation, limited liability company, partnership, sole proprietorship or other entity. If the restrictions set forth in this section would otherwise be determined to be invalid or unenforceable by a court of competent jurisdiction, the parties intend and agree that such court shall exercise its discretion in reforming the provisions of this section.