Yeo & Yeo Technology Terms and Conditions
These terms and conditions (“Terms and Conditions”) exclusively govern the hardware, software (including custom software), goods, and equipment (“Products”) and/or professional, programming, application building, consulting, and maintenance services (the “Services”) described in the quote, proposal, statement of work, acknowledgment, work order, or similar document (each, an “Order”) issued by Yeo & Yeo Technology, LLC (“YYTECH”) to the customer named on the Order (“Customer”).
1. AGREEMENT; CONFLICTS; MODIFICATIONS. Each Order will be exclusively governed by these Terms and Conditions. Customer’s acceptance of an Order, issuance of a purchase order, or receipt of or full or partial payment for the Products or Services shall constitute Customer’s unconditional acceptance of these Terms and Conditions, which are binding and enforceable like any written agreement signed by Customer and which, together with the Order, forms the entire agreement between the parties. YYTECH is not responsible for any verbal agreements not reduced to writing in an Order. If there is any conflict or inconsistency between these Terms and Conditions and any Order, the terms of the Order will control. YYTECH hereby objects to and rejects any other terms and conditions as may be proposed on any transaction document supplied by Customer. No addition or modification to these Terms and Conditions shall be binding unless agreed to in writing and signed by an authorized representative of each party.
2. TERM AND TERMINATION.
2.1. Term; Automatic Renewal. Each Order shall commence on the date set forth in the Order and continue: (a) with respect to Services, for the period specified in the Order; (b) with respect to Products, until the Order has been fulfilled; or (c) it is terminated as provided in Section 2.2 below. Each Order for Services will automatically renew for the period specified in the Order, or, if no such term is specified, on a month-to-month basis unless either party provides the other party with written notice of its intent not to renew at least 30 days before expiration of the current term.
2.2. Termination For Cause. Either party may terminate any Order immediately upon written notice to the other party if the other party: (a) fails to perform any of its material obligations under these Terms and Conditions and fails to correct such failure within 20 days after receipt of written notice; or (b) stops conducting business in the normal course, admits its insolvency, makes an assignment for the benefit of creditors, or becomes the subject of any judicial or administrative proceeding in bankruptcy, receivership or reorganization and the proceeding is not dismissed within 90 days after it begins.
2.4. Effect of Termination. Customer will pay YYTECH for all Services completed and Products ordered prior to the Order termination date. After expiration or termination of an Order, those provisions in these Terms and Conditions which specifically provide for survival beyond expiration or termination, and all provisions regarding limitations of liability, confidentiality, non-solicitation, protection of intellectual property rights, and the like shall survive indefinitely. In the event of termination of any managed Services, and provided that Customer’s account is fully paid, YYTECH will use commercially reasonable efforts to transfer Customer’s account back to Customer or a third party designated by Customer. Customer shall indemnify, defend and hold harmless YYTECH and its agents from and against any claims or losses resulting from Customer’s or its designated third party’s acts or omissions during the transition period.
3. PRICE AND PAYMENT.
3.1. Fees. The fees for the Products and Services are set forth in the Order. Quotes and proposals are valid for 30 days unless otherwise stated on the Order. Unless specified as a fixed fee or non-recurring charge in an Order, fees for Services are estimates only and will be billed on a time and materials basis at YYTECH’s rate specified in the Order, or, if no rate is specified, then YYTECH’s current rates. Customer shall pay all shipping charges, including any charges to return Products. Any estimate provided by YYTECH is not a guarantee and may be decreased or increased to reflect actual hours expended by YYTECH. Except as may be set forth in an applicable Order, YYTECH may unilaterally change the pricing with at least 30 days’ written notice to Customer; provided that YYTECH may change prices due to fluctuations in third party vendor pricing (including tariff changes) without advance notice. Additional work outside of the Order may result in separate charges.
3.2. Expenses. Customer will reimburse YYTECH for all reasonable, out-of-pocket expenses, including travel and lodging expenses, incurred by YYTECH in connection with the performance of Services.
3.3. Invoices. Unless otherwise set forth in an Order, all invoices shall be paid within 10 days of invoice date. Monthly payments for Services are due one month in advance.
3.4. Late Payments. If the invoice is not paid in full by the due date, Customer agrees to pay a late payment charge at the rate of 1.5% per month, or the maximum late payment charge permitted by applicable law, whichever is less, on any unpaid amount. YYTECH may apply any payment received to any delinquent amount outstanding. Customer is liable to YYTECH for all reasonable fees and expenses, including reasonable attorney’s fees and litigation costs, incurred to collect any unpaid amounts. In the event YYTECH has not received payment in full from Customer on the due date, YYTECH shall also have the right to suspend future delivery of Products and performance of Services until Customer has paid in full all outstanding charges.
3.5. Taxes. The prices set forth in the Order do not include taxes or certain fees and charges. Customer is subject to any and all applicable taxes and government-mandated fees. If the Customer is exempt from any taxes or fees, Customer must provide proof of such exemption.
4. SERVICE-SPECIFIC TERMS.
4.1. Point of Contact. Customer may be required to provide one or more named points of contact (each a “POC”) within its organization who are empowered to request or direct YYTECH to provide the Services on Customer’s behalf. YYTECH shall be entitled to rely on all information provided by and decisions and approvals of the POC in connection with the Services. YYTECH will not be responsible if any information provided by the POC is not complete, accurate, consistent, or current.
4.2. Timing and Availability. The parties shall mutually agree upon timing and completion of the Services. YYTECH’s standard business hours are 7:30AM – 5:30PM Eastern Time Monday through Friday, excluding federal holidays (“Business Hours”). YYTECH will use commercially reasonable efforts to respond to Customer during such Business Hours. Customer understands that YYTECH’s performance of Services is dependent on Customer’s timely satisfaction of its own activities and responsibilities in connection with the Order, including all decisions and approvals by Customer personnel.
4.3. Managed Services. YYTECH is only responsible for providing managed Services to the networks, devices, hardware and systems identified in the Order. Although YYTECH will use all reasonable care and skill in providing managed Services, Customer acknowledges that YYTECH cannot guarantee the security and availability of Customer’s data and systems, and that the success of such Services are conditioned upon, among other things, Customer’s prompt implementation of YYTECH recommendations. Certain backup, replication and telecommunication services use various technologies that are beyond YYTECH’s control, and, while unlikely, data loss or corruption can occur because of use of and transmission across these technologies. Where such technologies are outside of its control, YYTECH will be held harmless against loss due to such technology. YYTECH will use commercially reasonable efforts to patch all critical updates as soon as they become available, and will otherwise provide patches and maintenance updates weekly. YYTECH is not responsible for any downtime or losses arising from or related to the installation or use of any patches or updates, provided that they are installed by YYTECH in accordance with the manufacturer or applicable vendor’s instructions.
4.4. Deliverables. As part of the Services, YYTECH may create custom software and other deliverables for Customer (the “Deliverables”). All Deliverables, including all underlying intellectual property rights in such Deliverables, shall be the sole and exclusive property of YYTECH. YYTECH grants to Customer a nonexclusive, worldwide, right and license to use such Deliverables for Customer’s internal use in connection with purpose for which they were created pursuant to the Order.
4.5. Onsite Services. When onsite at Customer’s premise, YYTECH will use commercially reasonable efforts to comply with Customer’s internal policies, procedures and rules provided to YYTECH in writing, including, those relating to environmental protection, health, safety, work and security.
4.6. Exclusions and Limitations. YYTECH shall not be liable for the failure to meet any defined service level objectives, fee guarantees, timing or completion deadlines if such failure was caused by the actions or inactions of Customer or otherwise beyond YYTECH’s control. Further, YYTECH shall not be responsible for any unauthorized changes made to Customer’s networks, systems, hardware, or devices without YYTECH’s written consent, and if any issues or failures result out of such unauthorized changes, YYTECH will bill Customer the full cost to restore the same to its original state. Unless expressly set forth in the Order, the Services do not include any type of internet or cyber security monitoring or the cost of consumables, replacement parts, hardware, software, network upgrades and associated services.
5. PRODUCT-SPECIFIC TERMS.
5.1. Delivery and Risk of Loss. Unless YYTECH otherwise agrees in writing, YYTECH shall deliver Products FCA (Incoterms 2020) YYTECH’s facilities, or the point of origin if the Products are shipped directly to Customer from a third party. Risk of loss shall pass to Customer upon delivery of goods to carrier. While dates for shipment, delivery, or performance are estimates only, YYTECH shall make commercially reasonable efforts to meet the dates set forth in the Order.
5.2. Acceptance; Returns. All Orders are non-cancellable and sales are final, except with YYTECH’s prior written approval. Claims for any nonconforming Products must be made by Customer in writing within 10 days of delivery of Product to Customer, after which time Customer will be deemed to have accepted such Products. Customer’s acceptance shall not waive Customer’s rights under any warranty for defective Products as set forth in Section 7.2. Prior to returning any Product, Customer shall obtain from YYTECH a returned goods authorization, in which YYTECH will authorize the return and specify the shipping method as well as any other return instructions. Canceled or returned Products that are not found to be defective or that are returned without YYTECH’s authorization may be subject to a restocking fee.
5.3. YYTECH Software. In connection with any software Product owned or developed by YYTECH and provided under the Order (“YYTECH Software”), YYTECH grants Customer a perpetual, non-transferable, non-sublicensable, non-assignable and non-exclusive right and license to install and use the YYTECH Software in machine executable object code form on no more than one computer (unless otherwise set forth in the Order or mutually agreed between the parties) solely for Customer’s internal business purposes and subject to the rights and restrictions contained in these Terms and Conditions and the applicable Order. Customer may not distribute or make the YYTECH Software available over a network where it could be used by multiple devices at the same time. Customer may create one backup copy of the YYTECH Software as may be legally necessary, provided that (a) it is used only for backup purposes; (b) all YYTECH information, including copyright notices, are maintained on such copy; and (c) possession of the copy is retained by Customer in a secure location. If YYTECH provides any upgrades, updates, enhancements, or supplements to the YYTECH Software (collectively, “Updates”), the use of the Updates is governed by these Terms and Conditions unless other terms accompany the Updates, in which case those terms apply.
5.4. Third Party Products. Customer acknowledges that certain Products provided hereunder, including those provided in connection with managed Services offered by YYTECH, may be manufactured or licensed by third parties, and that such third party Products may be subject to additional terms and conditions (“Third Party Terms”). If the acceptance of any Third Party Terms is required in connection with any managed Services to Customer, then Customer hereby authorized YYTECH to accept such Third Party Terms on Customer’s behalf. Customer shall abide by all Third Party Terms. Customer further acknowledges that pricing for such third party Products is subject to change and agrees that YYTECH may pass through to Customer any cost increases by any third party manufacturer or licensor, along with YYTECH’s standard markup.
6. CUSTOMER RESPONSIBILITIES. YYTECH is entitled to rely on all information provided by Customer in connection with the Order, and Customer shall provide YYTECH with complete and accurate information. Customer shall promptly notify YYTECH of any events or incidents that may impact the Services or require additional Services. Customer shall cooperate with YYTECH as reasonably necessary for YYTECH’s delivery of Products and performance of Services in a timely manner. This cooperation may include, but is not limited to: (a) providing YYTECH with access to all facilities, hardware, software, workspace, and office support (telephone, internet access, etc.) as reasonably required for the performance of Services or provision of Products by YYTECH hereunder; (b) ensuring that Customer’s premises are safe, free of any hazardous materials that affect YYTECH performance and having installed necessary power and climate control facilities; (c) providing YYTECH with designated POCs; and (d) providing necessary telephone numbers and passwords to enable remote access to Customer’s systems and notifying YYTECH promptly of any changes made to such numbers or passwords. Except as otherwise provided in an Order, Customer is responsible for ensuring that its networks and systems are adequately secured against unauthorized intrusion or attack and regularly backing up its data and files in accordance with good computing practices. Customer shall obtain any consents and licenses that may be necessary for YYTECH’s provision of Products and Services hereunder. Customer will follow all instructions and promptly implement any recommendations of YYTECH. Customer is responsible for obtaining and maintaining insurance, including cyber liability insurance, in coverages and amounts sufficient to cover Customer’s operations. YYTECH shall be relieved of all liability to the extent caused by Customer’s failure to comply with any of the foregoing.
7.1. Services. YYTECH warrants that the Services will be performed using generally accepted industry standards and practices. If a Service proves to be non-conforming within 30 days after YYTECH performs the Service, then YYTECH shall, at its option, either re-perform the Service at YYTECH’s expense, or refund to Customer the price that Customer paid to YYTECH for that part of the Service that was non-conforming. This Section sets forth Customer’s sole and exclusive remedy for any non-conforming Services. Customer will notify YYTECH in writing of any breach of this warranty within 30 days after completion of the Service.
7.2.1. YYTECH Software. YYTECH warrants that any YYTECH Software licensed to Customer hereunder will be free from defects in material or workmanship under normal and intended use for a period of 90 days from the date of delivery. If the YYTECH Software proves to be defective within such warranty period, then YYTECH shall, at its option, (a) repair or replace the YYTECH Software at YYTECH’s expense; or (b) credit to Customer the price that Customer paid to YYTECH for the YYTECH Software in question. YYTECH Software shall not be considered defective to the extent damaged due to inappropriate use or installation by Customer. This Section sets forth Customer’s sole and exclusive remedies for any defect in the YYTECH Software. Customer will notify YYTECH in writing of any breach of this warranty within 90 days after YYTECH Software delivery.
7.2.2. Third Party Products. YYTECH may provide Products that are manufactured, produced or delivered by third parties. Customer agrees that such third parties are and shall be solely responsible for the performance, quality, merchantability, fitness for use, and for any and all warranty coverage for such Products, and that YYTECH is not liable for any warranty concerning such Products or for any losses resulting from any defect or failure of such Products. Customer agrees to pursue all performance, defective product, quality, shipping damages or breach of warranty or other claims related to such Products against the third party manufacturers and not against YYTECH. To the extent permissible, YYTECH hereby assigns all rights it may have arising out of the warranties given to it by any manufacturer of Products. YYTECH will use all reasonable efforts to assist Customer in making any valid warranty claim to the manufacturer of any Products purchased by Customer from YYTECH.
7.3. Disclaimer. THE WARRANTIES SET FORTH ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES MADE ON THE PRODUCTS AND SERVICES PROVIDED PURSUANT TO AN ORDER. YYTECH DOES NOT MAKE ANY GUARANTEE WITH RESPECT TO THE ACCURACY, RELIABILITY, AVAILABILITY OR COMPLETENESS OF THE PRODUCTS AND SERVICES OR THE RESULTS OF ANY PRODUCTS OR SERVICES, OR THAT ANY ERRORS WILL BE CORRECTED. YYTECH EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE ENTIRE RISK AS TO THE USE OF THE PRODUCTS AND SERVICES IS ASSUMED BY CUSTOMER. CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY PROMISE, WARRANTY OR REPRESENTATION NOT EXPRESSLY SET FORTH IN THE ORDER OR THESE TERMS AND CONDITIONS. SOME STATES, TERRITORIES AND COUNTRIES DO NOT ALLOW CERTAIN WARRANTY EXCLUSIONS, SO TO THAT EXTENT THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER.
8. LIMITATIONS OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF CAPITAL, PRODUCT, PROFITS, USE, OR DATA. YYTECH SHALL NOT BE LIABLE FOR ANY SERVICES OR PRODUCTS PROVIDED BY THIRD PARTIES, INCLUDING THOSE IDENTIFIED OR REFERRED TO CUSTOMER BY YYTECH, OR FOR ANY DAMAGES OR OTHER LIABILITIES ARISING AS A RESULT OF CUSTOMER’S FAILURE TO IMPLEMENT OR OTHERWISE FOLLOW YYTECH’S RECOMMENDATIONS AND INSTRUCTIONS, A CYBERATTACK OR ANY OTHER EVENT NOT CONTEMPLATED BY THIS AGREEMENT, OR CUSTOMER’S RESPONSE TO ANY UNSOLICITED EMAIL, DIRECT MAIL, TEXT MESSAGE, OR PHONE CALL. YYTECH’S MAXIMUM AGGREGATE LIABILITY SHALL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO YYTECH UNDER AN ORDER FOR THE PRODUCT OR SERVICE GIVING RISE TO THE CLAIM. THESE DISCLAIMERS AND LIMITATIONS WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), INDEMNITY, OR OTHERWISE. THIS SECTION IS NOT INTENDED TO LIMIT OR EXCLUDE A PARTY’S LIABILITY FOR ANY MATTER WHICH LIABILITY CANNOT BE LIMITED OR EXCLUDED BY LAW.
9. INDEMNIFICATION. Each party shall indemnify, defend, and hold harmless the other party and its officers and agents from and against any third party claims, demands, suits, and causes of action and all damages, costs, fees and expenses (including reasonable attorneys’ fees and disbursements) arising therefrom (collectively, “Losses”) that result or are claimed to result from the indemnifying party’s gross negligence or willful misconduct. Further, Customer shall indemnify, defend and hold harmless YYTECH and its officers and agents from and against any Losses that result or are claimed to result from: (a) any materials supplied by Customer to YYTECH; (b) any request or directive by Customer, including YYTECH’s performance of the same; or (c) Customer’s failure to implement YYTECH’s recommendations or follow YYTECH’s instructions. Notwithstanding the foregoing, neither party shall have any obligations under this Section 9 to the extent that any Losses are caused by the other party’s negligence or breach of these Terms and Conditions.
10. CONFIDENTIALITY. Neither party shall disclose or use any Confidential Information of the other party except as reasonably necessary to perform its obligations or exercise its rights under an Order or these Terms and Conditions, except with the other party’s prior written permission. “Confidential Information” means information designated as confidential or proprietary or which reasonably ought to be considered as confidential from its nature or from the circumstances surrounding its disclosure, including all non-public financial information, customer lists and employee data, pending patents or trade secret information, methodologies, inventions, know-how, software programs, software source documents and formula, and the pricing and other terms of each Order. Confidential Information does not include information that such party can demonstrate: (a) to have been or becomes part of the public domain through no wrongful/unauthorized act or omission of such party; (b) by written records predating disclosure by the other party to have been in the possession of such party on a non-confidential basis prior to the date of its disclosure; or (c) by written records to have been disclosed to such party on a non-confidential basis by a third party having a lawful right to do so. Each party shall limit dissemination of the other party’s Confidential Information to those of its employees and agents who may reasonably require the same for purposes of assisting in the party’s performance of its obligations hereunder. Each party agrees to protect the Confidential Information of the other party in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care. In the event that a party is required to disclose any Confidential Information of the other party by law, or governmental, judicial, or legal process, to the extent not contrary to law or any provision of any regulatory authority, the party shall timely inform the other party and, at the other party’s expense, cooperate with the other party to limit such disclosure. Upon termination or expiration of any Order, each party shall, upon request, return or destroy all Confidential Information of the other party in its possession or control that the receiving party is capable of returning or destroying in the ordinary course of its business, unless legally prohibited from doing so.
11.1. By Customer. All information supplied or otherwise made available by Customer to YYTECH under these Terms and Conditions, including custom specifications provided by Customer (“Customer Materials”) shall be and remain the sole property of Customer.
11.2. By YYTECH. Except as it relates to any Customer Materials, all information, software, materials, concepts, designs, ideas, inventions, developments, trade secrets, and other work produced or advice given by YYTECH relating to any Products or Services provided under an Order shall belong solely to YYTECH, and YYTECH retains all rights not expressly granted hereunder.
12.1. Independent Contractor. YYTECH is an independent contractor and nothing in these Terms and Conditions will be deemed to make YYTECH an agent, employee or joint venturer of Customer.
12.2. Non-Solicitation. To the extent permitted by applicable law, for a period of one year following the expiration or earlier termination of an Order, neither party shall directly solicit employment of any employee of the other that worked directly and materially in connection with an Order. A party shall not be considered to have breached its obligations under this Section if an employee of the other party approached the employing party in response to a standard job posting or a general classified advertisement such party placed in a newspaper or other publication of general circulation or a professional publication, including over the internet.
12.3. Compliance with Laws; Export. The Products and Services provided by YYTECH are subject to the condition that they may not be used for any unlawful purpose or in any unlawful manner, and YYTECH reserves the right to terminate any Order or suspend its performance thereunder if any such unlawful use occurs. YYTECH and Customer shall comply with all applicable federal, state and local laws, statutes, rules, regulations and ordinances in providing and in using, respectively, the Products and Services, including those related to the privacy of data. Customer may not use or otherwise export or re-export the Products or any component thereof except as authorized by United States law. Customer represents and warrants that it is not (a) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) listed on any U.S. Government list of prohibited or restricted parties.
12.4. Force Majeure. Neither party will be liable to the other party for any delay or failure to perform its obligations (excluding payment obligations, which may only be delayed but not excused entirely) if such delay or failure arises from any cause beyond the reasonable control of that party, including, but not limited to, acts of nature, acts of God, governmental actions, pandemics, strikes, civil disturbances, terrorist acts, unavailability of goods or services needed from third parties, interruption or delay in telecommunications, transportation, delivery, or electrical services, failure of third party hardware or software, acts or omissions of third parties, or any cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware solutions.
12.5. Assignment. An Order may not be assigned or delegated by Customer without the prior written consent of YYTECH, which shall not be unreasonably withheld, conditioned or delayed.
12.6. Waiver; Severability. No provision of these Terms and Conditions will be deemed waived unless such waiver is in writing and signed by the party providing the waiver. Any such waiver provided will not constitute a waiver of any different or subsequent breach. If any provision of these Terms and Conditions is prohibited or unenforceable by applicable law, the provision will be ineffective only to the extent and for the duration of the prohibition or unenforceability, without invalidating any of the remaining provisions.
12.7. Disputes. The agreement evidenced hereby and all disputes arising thereunder will be governed by and interpreted in accordance with the laws of the State of Michigan, excluding the United Nations Convention on Contracts for the International Sale of Goods, without regard to conflict of laws principals. Any action by either party must be brought within the state or federals court that has subject matter jurisdiction and is located in, or whose district includes, Saginaw County, Michigan. The parties consent to the exclusive jurisdiction of such courts and waive any objection that the court is an inconvenient forum. In the event of any legal proceeding between the parties relating to these Terms and Conditions or an Order, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs from the non-prevailing party. Any action by either party must be brought within 12 months after the cause of action accrues. The parties acknowledge that all prices have been set, and all agreements are entered into in reliance upon the limitations of liability, remedies, damages, and the disclaimers of warranties and damages set forth herein, and that all such limitations and exclusions form an essential basis of the bargain between the parties. The specific remedies provided herein are the exclusive remedies available to Customer.
12.8. Notices. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier or U.S. Mail, registered or certified return receipt requested and postage prepaid, in each case to the address set forth in the Order. Such notice will be deemed to have been given as of the date it is received.
Revised: March 28, 2022