This Terms and Conditions (“Agreement”) sets forth the terms of Your agreement to purchase goods and services (the “Work”) from Complete Prototype Services, Inc. (“CPS”) subject to the prices, quantities, terms and conditions set forth in Your Purchase Order (“Purchase Order”) and governed by the terms and conditions contained in this Agreement. As used herein, (“You”, “Your” or “Customer”) refers to the customer. Issuance or submission of a Purchase Order to CPS shall be deemed as acceptance of this Agreement and the corresponding quotation from CPS that relates to Your Purchase Order (“Quote”).
Material Disclaimer. Due to market volatility, material cost and timing will be re-evaluated upon completion of preliminary tooling designs (typically 1-2 weeks after kick off).
Property Rights. Unless stated in an applicable Purchase Order, CPS owns all rights, title and interest in CPS trade names, service marks, inventions, copyrights, trade secrets, patents, and know-how relating to the design, function, or operation of plans and of the hardware and software systems and resources necessary to provide the individual service elements of which the Work consists. This Agreement does not constitute a license to You to use CPS’s trade names or service marks. Notwithstanding the foregoing, You hereby consent to CPS’s non-exclusive use of Your trademark and/or logo, for the purpose of displaying Your status as a customer of CPS. Title to the Work shall pass to You upon the earlier of: 1) The date that CPS receives payment in full, or 2) as specified by agreement of the parties.
Taxes. Fees under a Purchase Order do not include applicable Taxes unless so indicated. New Work will result in additional fees/charges. You will be solely responsible, where applicable, for paying local and state personal property taxes associated with Your equipment or Work stored in a facility rented or owned by CPS. In the event that CPS is required by a governmental authority to pay property taxes on Your behalf, CPS will have the right to be reimbursed by You for such amount. You must reimburse CPS within 30 days of written notice that a tax has been paid on Your behalf by CPS.
Cancellation. Once CPS has initiated the Work, You may not cancel the applicable Purchase Order without the written consent of CPS. In the event that you attempt to cancel a Purchase Order after CPS has initiated the Work, You shall be responsible to compensate CPS for all costs incurred, including but not limited to lost profits and costs of collection.
Acceptance. CPS may reject any Purchase Order at its discretion. This Agreement will remain in full force beginning from the date of CPS’s acceptance of any Purchase Order for the Work and will apply to all future Work You purchase from CPS.
Billing and Collection of Charges. You will be billed by CPS as specified in the Quote. Subject to the terms of Your Purchase Order, CPS reserves the right to increase Your cost for Work in the event of a change or increase which increases the cost of providing the Work to You. All late payments will be assessed a late payment fee of One Point Five Percent (1.5%) per month, or the highest amount allowable by law in the event that 1.5% per month is found to be usurious.
Billing Disputes. All payments to CPS are NON-REFUNDABLE. If You dispute a term or amount on an invoice, You must do so in writing within 30 days from the invoice date. Disputes must be sent by certified mail at the address provided for herein.
You shall use Your best efforts to immediately inform CPS in writing of any apparent defects in the Work as soon as possible from the time at which such defects should be detectable in the ordinary course of business. Notwithstanding the foregoing, any and all defects must be reported to CPS in writing within thirty (30) days of acceptance of the applicable Work. You must pay an amount equal to the part of the invoice that is not in dispute. Payment of the amount of the invoice not in dispute will not be deemed to constitute acceptance of the portion of the invoice that is in dispute.
Transfers and Assignments. You may not assign or transfer Your rights or duties in connection with the Work provided by CPS without the prior written consent of CPS. All transfers of rights or duties herein, without the advanced permission in writing of CPS, shall be void and unenforceable as a matter of law.
Limitation of Liability. CPS SHALL NOT BE LIABLE FOR ANY AND ALL: DIRECT OR INDIRECT, INCIDENTAL, GENERAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OR BUSINESS OPPORTUNITY OR LOSS OF USE, EVEN IF CUSTOMER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, TO CUSTOMER FOR A BREACH OF THIS AGREEMENT, OR AN PURCHASE ORDER OR TERM AND CONDITION OF CPS. FURTHER, CPS SHALL NOT BE RESPONSIBLE TO YOU OR ANY OTHER PARTY FOR ANY ALLEGED DESIGN OR CONSTRUCTION DEFECT INVOLVING A DESIGN WHICH WAS DESIGNED OR PROVIDED BY YOU. IN THE EVENT OF A BREACH OF AN OBLIGATION BY CPS, CUSTOMER’S DAMAGES SHALL BE LIMITED TO $500. Notwithstanding anything herein to the contrary, You agree to accept the Work on an “as-is” non-warrantable basis. CPS expressly disclaims the warranties of merchantability, TITLE and fitness for a particular purpose regarding the providing of the WORK to You. YOU AGREE THAT CPS SHALL NOT BE LIABLE FOR DAMAGES INCURRED OR SUMS PAID WHEN THE WORK IS TEMPORARILY OR PERMANENTLY UNAVAILABLE, REGARDLESS OF WHETHER ANY REMEDY PROVIDED IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. YOU AGREE THAT YOU WILL NOT HOLD CPS RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF THIRD PARTIES IN CONNECTION WITH THE WORK, OR HOLD A THIRD PARTY RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, CPS IN CONNECTION WITH THE SERVICES. WITHOUT LIMITING THE FOREGOING, YOU AGREE TO INDEMNIFY CPS AND THAT YOU WILL NOT HOLD CPS RESPONSIBLE FOR: (A) THIRD PARTY CLAIMS AGAINST YOU FOR DAMAGES, (B) LOSS OF OR DAMAGE TO CUSTOMER’S RECORDS, PROPERTY, OR DATA OR THOSE OF ANY THIRD PARTY, OR (C) AN ALLEGED BREACH OF A THIRD PARTY, INCLUDING BUT NOT LIMITED TO INTELLECTUAL PROPERTY CLAIMS OF THIRD PARTIES. YOU AGREE TO MAKE ALL CLAIMS RELATED TO THE WORK DIRECTLY AGAINST CPS, AND WAIVE ANY RIGHT TO RECOVER DAMAGES (DIRECTLY OR BY INDEMNITY) RELATED TO THE SERVICES BY CLAIMING AGAINST OR THROUGH A THIRD PARTY TO THIS AGREEMENT.
Notices and Communications. You must designate on Your Purchase Order a mailing address and e-mail address to which CPS may mail or deliver notices and other communications. All notices You send to CPS must be in writing, by registered mail, sent to:
Complete Prototype Services, Inc.
44783 Morley Drive
Clinton Twp., MI 48036
Applicable Law. Venue and Jurisdiction. Dispute Resolution. This Agreement shall be subject to and governed by the laws of the State of Michigan. Any claim under this Agreement may be arbitrated in Oakland County Michigan if CPS gives advanced written consent to You to arbitrate. Notwithstanding the foregoing, venue for any legal action arising out of this Agreement shall be exclusively within the State of Michigan, Oakland County Circuit Court or the Federal District Court for the Eastern District of Michigan.
Partial Invalidity. Waiver. Conflict of Terms. Remedies. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, the remaining provisions will nevertheless remain in full force and effect. One or more waivers of a breach of the terms and conditions of this Agreement shall not constitute a waiver of any future breach thereof. In addition, should a term of this Agreement and any other posted policy of CPS be in conflict with one another, this Agreement shall control. In the event of a breach or violation by You of this Agreement, CPS shall be entitled to injunctive relief, in addition to any other remedy including monetary damages.
Non-Solicitation. During the term that this Agreement is in effect and for a period of two (2) years from the termination of this Agreement or fulfillment of and Order for any reason whatsoever, You shall not solicit, induce, or attempt to induce any past or current customers, clients, prospects, employees, independent contractors, attorney referrals, vendors, and any other client, customer or referral contact of CPS (collectively the “Non-Solicited Parties”) to: (a) cease doing business in whole or in part with or through the Company, or (b) do business with any other person, firm, partnership, corporation, or other entity which performs services materially similar to or competitive with those provided by the Company. For the avoidance of doubt, this paragraph shall be construed as a complete prohibition against Your ability to solicit the Non-Solicited Parties for any reason, whether for profit, for charitable purposes, for social purposes, or for any other purpose.
Important To Note: If you hire an employee of CPS, Inc., at any time during our relationship, or within one year of the end of our relationship, you will be billed a recruiting fee of $10,000.00. This fee will be paid to CPS, Inc.
Statute of Limitations. You agree that any claim against CPS, whether arising in tort, contract or otherwise, must be brought within 6 months of the date giving rise to the claim.
Confidentiality. You shall not ever, directly or indirectly, (either during the term of this Agreement or after the termination of this Agreement) copy, disclose, communicate, distribute, reveal or use in any way, the Confidential Information of CPS. Where used herein, Confidential Information shall refer to: customer lists, customer data, financial information, pricing, Quotations, CPS’s processes, CPS’s know how and techniques, insurance information, referral data, financial data and contact lists, prospects, customers, ex-customers, referral attorneys, account lists and information, client lists, ex-client lists, client information, personnel information, prices, vendor material, client contract specifications, passwords, user names, and profiles, trade secrets, knowhow, sales and marketing plans, current and future business plans, and other proprietary information relating to the Company (collectively, referred to herein as “Confidential Information”). The parties agree that the Confidential Information is vital to the Company’s business and that the success and competitive advantage of the Company vitally depends on the maintenance of said Confidential Information.
Entire Agreement; Modifications. This Agreement and Your Purchase Order set forth the entire Agreement and understanding between the parties and merges all prior discussion between them. This Agreement may not be modified except by the written consent of both parties.
Risk of Loss. At all times, You will bear the risk of any loss, damage or destruction of Your assets, equipment or property provided or maintained by CPS, from: fire, water damage, theft or other casualty. You will be solely responsible for insuring Your property and filing insurance claims for losses associated therewith. If CPS is aware of loss or casualty to Your property, CPS will notify You, stating the extent of loss or damage incurred and the cause, if known.
Indemnification. You agree to indemnify, defend, and hold CPS harmless, as well as its subsidiaries, affiliates, officers, directors, employees, agents, licensors, consultants, suppliers, and any third-party suppliers, from and against all claims, demands, actions, liabilities, losses, expenses, damages, judgments and costs, including attorneys’ fees, resulting from Your violation of this Agreement, misuse or abuse of the Work, violation of State or Federal law, or infringement of the Intellectual Property of others in relation to Your Purchase Order or this Agreement. CPS reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You. You must not in any event accept a settlement of any dispute relating to this contract without prior written consent of CPS.
Further, You warrant that there are no patents, copyrights, or other proprietary rights which will or may be infringed upon by CPS production and design changes to the Work. You hereby agree to indemnify, defend, and hold CPS harmless, as well as its subsidiaries, affiliates, officers, directors, employees, agents, licensors, consultants, suppliers, and any third-party suppliers, from and against all claims, demands, actions, liabilities, losses, expenses, damages, judgments and costs, including attorneys’ fees, resulting from and against any and all claims, demands, actions, liabilities, losses, expenses, damages, judgments and costs, including attorneys’ fees, resulting from any claim that the design contained in the Work or applicable Purchase Order infringes upon the intellectual property of any third party, or that Your design or that any product manufactured from that design was defective.
Attorneys’ Fees. If legal proceedings are instituted to enforce any or the terms and conditions of Your Purchase Order or this Agreement, You agree to pay all costs of CPS in connection therewith, including actual attorneys’ fees, court costs, and other costs of collection.
Non-Disparagement. You agree that You will never disparage, criticize, condemn or impugn the Company or its products and services, whether in print, orally, or through electronic or social media.