Terms & Conditions
The following sets forth the terms and conditions under which you (the “Customer”) purchases fuel, lubricants, and other products (each a “Product” and collectively, the “Products”) or services (each a “Services” and collectively, the “Services”) from SFM Reliability, LLC (and/or any entities that, directly or indirectly, control, are controlled by, or are under common control with SFM Reliability, LLC) (collectively, “SFM Reliability”) and under which SFM Reliability supplies to Customer such Products and/or Services (collectively, the “Work”). The Customer and SFM Reliability are each individually referred to herein, as a Party and collectively as the “Parties.” Without limitation, placing an order and/or accepting the Work shall be deemed acceptance of this agreement. All Work performed is subject to these terms and conditions, unless the Parties have entered into a dually executed written agreement that expressly governs the Work being performed. Notwithstanding anything to the contrary, any additional, conflicting, contrary, or competing provisions, terms and/or conditions contained in any Customer provided document (including without limitation, Customer’s online terms and conditions; Customer’s form, preprinted, or general terms and conditions attached to referenced in any Customer provided purchase order, work order, vender onboarding document, credit application; or similar Customer provided document) shall be void ab initio, regardless of SFM Reliability’s execution thereof or performance thereunder.
ORDERING. Customer is responsible for managing its inventory of Products and for contacting SFM Reliability to order Products. Nothing in these terms and conditions obligates SFM Reliability to accept any order from Customer.
DELIVERY/SHIPPING TERMS. Once an order is accepted, SFM Reliability will schedule delivery of the Products to Customer’s location in accordance with its standard delivery practices and agrees to use reasonable best efforts to deliver the Products in a timely manner. Notwithstanding anything to the contrary, SFM Reliability Entity shall only be required to use reasonable best efforts to meet any applicable deadline, timeline, or schedule. Title to the Products shall pass to Customer upon delivery. Customer shall pay all delivery fees and fuel surcharges and any fees for any special routing, handling, packaging or insurance requested by Customer.
PRICE/TAXES. Unless otherwise agreed to in writing and signed by an authorized representative of SFM Reliability, Customer understands and agrees that the price quotes are valid for only 30 days. None of the pricing includes charges for equipment, equipment maintenance or repairs, inventory management, or other services, and the pricing excludes all taxes, duties, fees, levies and charges relating to the sale of the Products. Customer is responsible for all such taxes, duties, fees, levies, and charges resulting from Customer’s order, whether now or hereafter imposed, levied, collected, withheld, or assessed. If SFM Reliability is required to impose, levy, collect, withhold, or assess any such taxes, duties, fees, levies or charges on any transaction under this agreement, then in addition to the purchase price of the Product, SFM Reliability shall invoice Customer for such taxes, duties, fees, levies and charges. With respect to items sold by SFM Reliability, we cannot confirm the price of an item until you order. Despite our best efforts, a small number of the items in our catalog may be mispriced. If the correct price of an item sold by SFM Reliability is higher than our stated price, we will, at our discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation. All pricing is based on SFM Reliability’s preferred payment method of cash and cash equivalents (cash, electronic funds transfer, ACH debit, cashier’s check, money order, and business checks if preapproved by SFM Reliability), in U.S. Dollars. No other forms of payment shall be accepted.
PAYMENT/TERMS. Notwithstanding anything to the contrary, all Customer accounts and payment terms are subject to change, based on initial approval and future redetermination by SFM Reliability’s credit department. Such payment terms shall be at the sole discretion of SFM Reliability based upon its credit department’s determination of Customer’s creditworthiness. Customer hereby agrees to comply with SFM Reliability’s credit determination and to pay in accordance therewith, provided that SFM Reliability must provide notice of any change in payment terms to Customer, in writing. SFM Reliability may re-evaluate Customer’s credit standing at any time. At any time, if SFM Reliability determines in its sole discretion that Customer fails to qualify for payment terms, then SFM Reliability may modify or withdraw credit terms, including but not limited to requiring advance payment, guarantees, or other security. In the event Customer’s account is or becomes a COD or prepay account, Customer acknowledges and agrees that payment in full will be required prior to delivery of Products or performance of Services. If any Work Order calls for a predetermined, reoccurring, or monthly payment, such monthly payment shall be due in advance on or before the first day of the month for which such payment applies, regardless of invoice date. Following receipt of a properly submitted invoice, Customer shall pay all undisputed amounts therein, under the payment terms determined by SFM Reliability’s credit department. If Customer disputes any invoice, in good faith, in whole or in part, Customer shall promptly notify SFM Reliability of the dispute (but no later than the date such payment is due) and shall promptly pay the undisputed portion, when due. Customer and SFM Reliability shall endeavor to settle and adjust any disputed amount forthwith. If Customer is delinquent then SFM Reliability may upon written notice to Customer withhold additional Work until all delinquent amounts and late interest, if any, are paid. Additionally, SFM Reliability may at its option: (a) repossess the Products for which payment has not been made; (b) charge interest on delinquent amounts at 18% per annum or the maximum rate permitted by law for each full or partial month payments are overdue; (c) recover all costs of collection, including but not limited to reasonable attorneys’ fees in respect of overdue payments; (d) combine any of the above rights and remedies as may be permitted by applicable law. These remedies are in addition to all other remedies available at law or in equity.
WARRANTIES.
General: All Work performed by SFM Reliability shall be performed with due diligence, in a good and workmanlike manner and in accordance with the practices and standards of the industry. All materials, equipment, supplies, or manufactured articles furnished by SFM Reliability in the performance of the Work or services necessary to the completion of the Work shall be warranted free from defects, for a period of 12 months following performance or delivery thereof. SFM Reliability shall be solely responsible for any Work found defective or unsuitable due to acts and/or omissions of SFM Reliability, without additional cost or risk to Customer during the applicable 12-month warranty period, provided that Customer gives written notice to SFM Reliability of any such defect within such 12-month warranty period. Any warranty work shall have the same warranty as the original Work corrected. SFM RELIABILITY HEREBY DISCLAIMS AND CUSTOMER HEREBY WAIVES ANY AND ALL OTHER WARRANTIES, EXPRESS AND/OR IMPLIED, THAT MAY NOW OR IN THE FUTURE APPLY TO THE WORK, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS OR SUITABILITY OF THE PRODUCT FOR ANY PARTICULAR PURPOSE. SHOULD CUSTOMER OR ANY THIRD PARTY MODIFY, TAMPER WITH, OR ADULTERATE ANY PRODUCT, IN ANY WAY, INCLUDING WITHOUT LIMITATION BLENDING ADDITIVES THEREWITH OR COMINGLING WITH EXISTING OR OTHER PRODUCTS, ALL WARRANTIES SHALL BE VOID AND SUCH PRODUCT SHALL BE DEEMED IRREVOCABLY ACCEPTED BY CUSTOMER AND FURTHER DEEMED TO MEET ALL APPLICABLE STANDARDS, SPECIFICATIONS, AND REQUIREMENTS, FOR ALL PURPOSES.
Perishable Products: Notwithstanding anything to the contrary:
In regard to fuel, lubricants, diesel exhaust fluid, chemicals, potable water, and/or any other product that is perishable, volatile, consumable, has a shelf life, or is of a nature that Customer’s proper storage, handling, and/or use may determine such product’s quality or ability to meet certain specifications following delivery (“Perishable Products”), SFM Reliability only warrants that such Perishable Products will substantially comply with expressly required standards and/or specifications at the time of delivery. SFM RELIABILITY HEREBY DISCLAIMS AND CUSTOMER HEREBY WAIVES ANY AND ALL OTHER WARRANTIES, EXPRESS AND/OR IMPLIED, THAT MAY NOW OR IN THE FUTURE APPLY TO PERISHABLE PRODUCTS, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS OR SUITABILITY OF THE PERISHABLE PRODUCTS FOR ANY PARTICULAR PURPOSE.
Customer shall have the right to inspect Perishable Products at the time of delivery and to reject the same for failure to substantially comply with expressly required standards and/or specifications.
Should Customer fail to reject any Perishable Products, at the time of delivery, for failure to substantially comply with expressly required standards and/or specifications, then such Perishable Products shall be deemed irrevocably accepted by Customer and further deemed to meet all applicable standards, specifications, and requirements, for all purposes.
Should Customer properly reject any Perishable Products, at the time of delivery, for failure to substantially comply with expressly required standards and/or specifications, then Customer’s exclusive remedy therefor shall be, at Customer’s sole discretion, either the prompt redelivery of compliant products or the refund of all amounts actually paid for the non-compliant products.
SHOULD CUSTOMER OR ANY THIRD PARTY MODIFY, TAMPER WITH, OR ADULTERATE ANY PERISHABLE PRODUCT, IN ANY WAY, INCLUDING WITHOUT LIMITATION BLENDING ADDITIVES THEREWITH OR COMINGLING WITH EXISTING OR OTHER PRODUCTS, ALL WARRANTIES SHALL BE VOID AND SUCH PERISHABLE PRODUCT SHALL BE DEEMED IRREVOCABLY ACCEPTED BY CUSTOMER AND FURTHER DEEMED TO MEET ALL APPLICABLE STANDARDS, SPECIFICATIONS, AND REQUIREMENTS, FOR ALL PURPOSES.
EQUIPMENT. Notwithstanding anything to the contrary, in the event that Customer rents, borrows, or purchases any of SFM Reliability’s tanks or equipment (“Equipment”), and there is no other applicable agreement in place, the following terms and conditions of this Section 6 shall govern:
Customer shall not relocate the Equipment without the prior written permission from SFM Reliability and Customer agrees that it shall be subject to additional charges of up to $1,000.00 per piece of Equipment for doing so.
Customer acknowledges that although SFM Reliability may assist Customer’s communication with the local Fire Marshal to help Customer meet the placement requirements for such Equipment at Customer’s location, Customer shall be solely responsible for compliance with all permitting and licensing requirements and other laws, regulations, and ordinances that are applicable to Customer’s rental, use, placement, and possession of the Equipment. Customer shall fully indemnify and hold SFM Reliability harmless for any fees or fines associated with any failure to comply with all permitting or licensing requirements or any other laws, regulations, or ordinances that are applicable to Customer’s rental, use, placement, and/or possession of the Equipment.
Customer agrees to purchase all fuel, lubricants, diesel exhaust fluid, water, and/or other Products for the Equipment, from SFM Reliability. Fuel, lubricants, diesel exhaust fluid, water, and/or other Products purchased from SFM Reliability are not included in any monthly rental rate charged for the Equipment, nor is any delivery fee, retrieval fee, trip charge, hourly rate, or any other cost or fee.
In the event that SFM Reliability agrees to loan Customer a tank, without a monthly charge therefor, Customer also agrees that fuel tanks must be filled monthly and tanks storing other products must be filled once every three months. In the event that Customer fails to meet the applicable monthly fill requirement, Customer agrees to pay SFM Reliability’s monthly tank lease fee (varies by type of tank and related equipment loaned) for each loaned tank. In the event Customer fails to meet the minimum monthly fill requirement, SFM Reliability also reserves the right, in its sole judgment, to substitute smaller tank(s) based on Customer’s actual monthly usage.
Customer agrees that it may be required to pay other fees associated with loaned or rented Equipment, including without limitation tank or equipment delivery and pick-up fees, fuel delivery fees for certain amounts of fuel, and fees for the use of tank monitors and/or pumps.
SFM Reliability shall, at all times, retain title to and ownership of the Equipment and Customer agrees to maintain the Equipment lien free. The Parties agree that the Equipment shall remain SFM Reliability’s personal property and shall not be deemed, for any reason, to be a part of any real or personal property to which such Equipment may be attached or anchored, or otherwise placed upon.
Customer shall use the Equipment solely for the purposes set forth in the applicable order or as otherwise instructed by SFM Reliability.
Customer shall not remove, deface, or obscure any name plate, decal, or other identifying marking or insignia on the Equipment, nor any safety or operating data set forth on the Equipment or on plates or tags attached thereto.
Customer shall be responsible for the care and well-being of the Equipment at all times such Equipment is subject to this Agreement or otherwise in the care, custody, control, or possession of Customer (“in the Care of Customer”; or “in Customer’s Care”). In the event the Equipment is damaged, lost, or stolen while in Customer’s Care, Customer shall immediately notify SFM Reliability of such damage, loss, or theft and Customer shall pay all costs to repair or replace such Equipment. Replacement cost shall be SFM Reliability’s actual cost to replace such Equipment, without regard to the value of the damaged Equipment.
Customer hereby grants SFM Reliability access to the Equipment, at all times, for purposes of inspection, substitution, repair, replacement, or removal. In the event that Customer does not own the property upon which the Equipment is located, Customer shall obtain, from the owner of such property, SFM Reliability’s express right to access such equipment, at all times, for the forgoing purposes. Should SFM Reliability be blocked from accessing the equipment, by locked gate or any other barrier, Customer hereby grant’s SFM Reliability the express right to breach or otherwise circumvent such locked gate or other barrier, to the extent SFM Reliability deems necessary to access its Equipment. Customer shall further protect, defend, release, indemnify, and hold SFM Reliability, its parents, subsidiaries, affiliates, and each of their members, shareholders, officers, directors, employees, and agents harmless from and against any claims, demands, causes of action, suits, losses, fines, penalties, costs, fees, liabilities, damages, and expenses (including, without limitation, attorneys’ fees, court costs and other costs of investigation and defense) arising from or related to SFM Reliability’s entering the property on which its Equipment is located and/or SFM Reliability’s breach or circumvention of any locked gate or other barrier preventing SFM Reliability from accessing its Equipment for the purpose of inspection, substitution, repair, replacement, or removal.
CUSTOMER SHALL BE SOLELY AND COMPLETELY RESPONSIBLE FOR AND SHALL INDEMNIFY SFM RELIABILITY FROM: 1.) ANY FUEL, LUBE OR OTHER PRODUCTS, POLLUTANTS, OR CONTAMINANTS SPILLED OR RELEASED FROM THE EQUIPMENT (EXCEPT TO THE EXTENT CAUSED BY SFM RELIABILITY’S NEGLIGENCE WHILE DELIVERING FUEL OR LUBRICANTS TO SUCH EQUIPMENT), INCLUDING WITHOUT LIMITATION, ANY REMEDIATION THEREOF AND FINES THEREFOR; AND 2.) SUBJECT TO THE IMMEDIATELY PRECEEDING INDEMNITY REGARDING THE SPILL OR RELEASE OF FUEL, LUBE OR OTHER PRODUCTS, POLLUTANTS, OR CONTAMINANTS, ANY INJURIES, DAMAGES, CLAIMS, FINES, CAUSES OF ACTION AND/OR RELATED ATTORNEYS’ FEES AND COSTS OF COURT ARISING FROM OR RELATED TO CUSTOMER’S RENTAL OR USE OF THE EQUIPMENT, EXCEPT TO THE EXTENT CAUSED BY SFM RELIABILITY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
Unless expressly agreed otherwise, in a document executed by SFM Reliability, the initial term of any Equipment loan or rental shall be one (1) month, continuing month to month thereafter, until terminated by either Party pursuant to Section 6(n) below.
If Customer is in breach this or any other agreement between the Parties, and such breach is not cured within seven (7) days following written notice from SFM Reliability may, without prejudice to any other right or remedy under this Agreement or otherwise, terminate this Agreement (and/or the applicable work order or purchase order) and remove the Equipment and contents from whatever location Customer has such Equipment stored or placed. Customer will be deemed to have forfeited its right to the contents of any Equipment upon SFM Reliability’s removal for breach.
Either Party may terminate an Equipment loan or rental, for any reason, by providing at least seven (7) days prior written notice to the other Party; such notice from Customer (not in breach) is deemed to include a request for SFM Reliability to remove and repossess the Equipment.
Notwithstanding anything to the contrary, any loan or rental of automated diesel exhaust fluid systems, automated fueling systems, or vehicles or trailers (including, without limitation, tractors, bobtails, transcubes with trailers, QRVs, or tractor trailer tankers) (“Exempt Rentals”) shall be governed by separate rental or loan contracts, which shall supersede the terms and conditions hereof, with respect to the loan or rental of such Exempt Rentals.
Notwithstanding anything to the contrary, in the event that Customer wishes to be transferred title to any Equipment, following a minimum rental period or minimum product purchase (“Rent-to-Own Equipment”), such transactions shall be governed by separate rental contracts, which shall supersede the terms and conditions hereof, with respect to the rental and title transfer of such Rent-to-Own Equipment.
Notwithstanding anything to the contrary, in the event that Customer wishes purchase any Equipment outright, such transaction shall be governed by separate sales contract or bill of sale, which shall supersede the terms and conditions hereof, with respect to the purchase of such Equipment.
Notwithstanding anything to the contrary, no terms or conditions provided by Customer shall govern the loan, rental, or purchase of Equipment, regardless of whether or not SFM Reliability executes or performs under such Customer provided terms and conditions; and any such Customer provided terms or conditions shall be void ab initio.
FORCE MAJEURE. Notwithstanding anything to the contrary:
SFM Reliability shall not be liable for any delay or inability to carry out any of its obligations hereunder when such delay or inability is due to a Force Majeure event. A Force Majeure event includes, but is not limited to, any acts of God; fires; hurricanes; floods; wars; terrorism; pandemics; strikes; labor disputes; lockouts or other industrial disturbance; civil unrest; product allocation issues; labor shortages; supply shortages; any cause outside of SFM Reliability’s reasonable control that causes a commercial impracticability of its performance; or any other causes not reasonably within the control of SFM Reliability. Notwithstanding the foregoing, it is understood and agreed that the settlement of strikes, labor disputes, and lockouts shall be entirely within the discretion of SFM Reliability, and that the above requirement shall not require the settlement of strikes, labor disputes, or lockouts by acceding to the demands of the opposing party or parties when such settlement is unfavorable in the sole judgment of SFM Reliability. In the event of product allocation issues, labor shortages, or supply shortages that cause price increases that are outside of SFM Reliability’s reasonable control or of a commercial impracticability in performance, upon notice to Customer, SFM Reliability may temporarily adjust the pricing during the Force Majeure event to reflect the increased cost to SFM Reliability. No such price adjustment permitted under this Force Majeure section shall be binding upon Customer until such time as Customer has accepted such pricing adjustments in writing; however, it is understood and agreed that absent such acceptance by Customer, SFM Reliability will be excused from any obligation to deliver Products during the Force Majeure event.
LIMITATION OF LIABILITY. IN NO EVENT WILL SFM RELIABILITY BE LIABLE FOR ANY INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, PUNITIVE DAMAGES, STATUTORY DAMAGES, INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, COSTS OF COVER, LOSS OF PROFITS, LOSS OF REVENUES, OR LOSS OF USE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, SFM RELIABILITY’S LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED IN ANY MANNER TO THE PRODUCTS WILL IN NO CASE EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO SFM RELIABILITY FOR THE PRODUCT FROM WHICH THE CLAIM AROSE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THESE LIMITATIONS AND EXCLUSIONS WILL APPLY REGARDLESS OF WHETHER LIABILITY ARISES FROM BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), BY OPERATION OF LAW, OR OTHERWISE.
INDEMNITY. Customer agrees to and shall protect, defend, release, indemnify, and hold SFM Reliability, its parents, subsidiaries, affiliates, and each of their members, shareholders, officers, directors, employees, and agents harmless from and against any claims, demands, causes of action, suits, losses, fines, penalties, costs, fees, liabilities, damages, and expenses (including, without limitation, attorneys’ fees, court costs and other costs of investigation and defense) of every kind or character, and which may be asserted under any theory of liability, including without limitation, contractual or indemnity claims, tort, negligence, statutory, products liability, common law, or other theories of liability (collectively “Claims”) caused by, arising out of, resulting from, or related to Customer’s (and/or any of its owners’, members’, shareholders’, officers’, directors’, employees’, agents’, and/or representative’s) breach of contract, violation of applicable law, negligent acts or omissions, gross negligence, and/or intentional misconduct.
TRADEMARKS/LABELS. Customer shall not remove, alter, cover, or replace any Product labels; indicia of manufacturing origin; patent numbers; or any other patent, trademark, tradename, copyright, other intellectual property information; warnings; or any other information contained on or within the Products.
COMPLIANCE WITH LAWS. Customer shall comply with all federal, state, and local laws, regulations, and ordinances applicable to the purchase, use, storage, dispensing, and sale of the Products and the import or export of any or all of the Products delivered hereunder. Customer shall defend, indemnify and hold SFM Reliability harmless from and against any and all Claims caused by, arising out of, resulting from, or related to Customer’s (and/or any of its owners’, members’, shareholders’, officers’, directors’, employees’, agents’, and/or representative’s) violation of any such laws, regulations, and/or ordinances.
TERMINATION. SFM Reliability may terminate any or all unperformed orders, without any liability therefor, by giving notice to Customer if: (a) Customer breaches a non-monetary provision of this agreement and fails to remedy the breach within 10 calendar days after written notice specifying the breach; (b) Customer fails to make any payment when due; or (c) any insolvency or suspension of Customer’s operations or any petition filed or proceeding made by or against Customer under any federal, or other applicable law relating to bankruptcy, arrangement, reorganization, receivership or assignment for the benefit of creditors or other similar proceedings. Termination does not affect Customer’s obligations with regard to any debt, claim or cause of action accruing to SFM Reliability before such termination. The rights of termination in this clause are not exclusive of other rights or remedies that SFM Reliability may be entitled to at law or in equity, but rather are in addition thereto.
ASSIGNMENT. Customer shall not assign any rights or obligations under this agreement without the advance written consent of SFM Reliability, which consent may be withheld, at SFM Reliability’s sole discretion. Any attempt to assign or delegate in violation of this clause shall be void.
WAIVER. The failure of either Party to enforce at any time any of the provisions of this Agreement shall not be construed to be a continuing waiver of any provisions hereunder nor will any such failure prejudice the right of such Party to take any action in the future to enforce any provisions hereunder.
HEADINGS AND CAPTIONS. Headings and captions are for convenience of reference only and do not alter the meaning or interpretation of this agreement.
CHOICE OF LAW AND FORUM. The construction, interpretation, and performance hereof and all transactions hereunder will be governed by the laws of the State of Texas, without regard to or application of its principles or laws regarding conflicts of laws. Customer expressly and unconditionally consents to the exclusive jurisdiction and venue of any state or federal court located in Harris County, Texas and waives its right to jury trial for any claim or action arising out of or relating to this agreement.
SEVERABILITY. If any provision herein is determined to be illegal, invalid, or unenforceable, the validity and enforceability of the remaining provisions herein shall not be affected and, in lieu of such illegal, invalid, or unenforceable provision, there will be added, as part of these terms and conditions, one or more provisions as similar in terms as may be legal, valid, and enforceable under applicable law.
GOVERNMENT REQUIREMENTS: In any instance where Customer is a government entity (including without limitation, school districts; cities or departments or agencies thereof; counties/parishes or departments or agencies thereof; states or departments or agencies thereof; the federal government or departments or agencies thereof) or where Customer is a prime contractor or sub-contractor (of any tier) under a contract with such a government entity or where Customer is being paid wholly or partially with government funds, Customer shall provide SFM Reliability, written notice (“Government Contract Notice”) of all applicable government or other flow-down provisions, all applicable regulations with which SFM Reliability is required to comply, all reporting and tracking requirements, and all other requirements or obligations imposed upon SFM Reliability arising from or related to such government work, government contract, or payment from government funds (collectively “Government Requirements”). Customer shall provide such Government Contract Notice listing all applicable Government Requirements prior to requesting any Work to which such Government Requirements are applicable; and failing to do so, Customer shall release, indemnify and hold SFM Reliability harmless from any and all Claims arising from or relating to SFM Reliability’s failure to comply with such Government Requirements. Notwithstanding anything to the contrary, the indemnity contained in this Section 18 includes indemnification for punitive, special, indirect, exemplary, incidental, and consequential damages.
CONFIDENTIALITY: Customer understands that SFM Reliability has disclosed or may disclose confidential information relating to SFM Reliability’s business, including without limitation financial information, business opportunities, computer programs, computer code, modules, scripts, algorithms, features and modes of operation, inventions (whether or not patentable), designs, techniques, processes, methodologies, schematics, testing procedures, software design and architecture, design and function specifications, analysis and performance information, user documentation, internal documentation and the features, mode of operation and other details of its products and services, as well as names and expertise of employees, consultants, customers and prospects, know how, ideas, and technical, business, financial, marketing, customer and product development plans, forecasts, strategies and other information, which to the extent previously, presently, or subsequently disclosed to Customer, in any form or format, is hereinafter referred to as “Proprietary Information” of SFM Reliability. In consideration of any access Customer may have to SFM Reliability’s Proprietary Information and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and agreed, the Parties hereto agree as follows:
Customer agrees (i) to hold SFM Reliability’s Proprietary Information in strict confidence and to take all reasonable precautions to protect such Proprietary Information, (ii) not to divulge any such Proprietary Information or any information derived therefrom to any third person (other than employees, officers, directors, consultants or agents of Customer (each, a “Representative”)), (iii) not to make any use whatsoever at any time of Proprietary Information except to perform this Agreement or evaluate a potential investment in, business relationship or other transaction with SFM Reliability (the “Transaction”), (iv) not to decompile, disassemble or reverse engineer any such Proprietary Information, and (v) not to copy or reproduce such Proprietary Information except to the extent necessary to assess the transaction. Any Representative given access to any Proprietary Information shall have a legitimate “need to know” and shall be subject to an obligation of confidentiality with respect to the Proprietary Information. The foregoing clauses (i), (ii), (iii), (iv) and (v) shall not apply with respect to any information that Customer can document (w) is or (through no improper action or inaction, if action is required, by Customer or any affiliate, agent, consultant or employee) becomes generally available or known to the public, or (x) was rightfully in Customer’s possession or known by it prior to receipt from SFM Reliability, or (y) was rightfully disclosed to Customer by a third party having no obligation of confidentiality, or (z) was independently developed by Customer without use of any Proprietary Information of SFM Reliability. Customer may make disclosures as required in response to an administrative or governmental request or judicial order; in which case Customer shall provide prompt written notice to SFM Reliability of such administrative or governmental request or judicial order, in order to allow SFM Reliability to participate in the protection its rights thereto, and Customer shall use reasonable efforts to limit disclosure of the Proprietary Information to only that which is required by law.
Immediately upon a request by SFM Reliability at any time, Customer will turn over to SFM Reliability, or destroy, all of SFM Reliability’s Proprietary Information and all documents or media containing any such Proprietary Information and any and all copies or extracts thereof (other than copies required by Customer or its Representatives by law or archiving policies to be retained and copies created by automatic computer back-up). Upon request of SFM Reliability, Customer shall certify in writing that all materials containing Proprietary Information (including all copies thereof) have been returned to SFM Reliability or destroyed. Customer understands that nothing herein (a) requires the disclosure of any Proprietary Information of SFM Reliability, which shall be disclosed, if at all, solely at the option of SFM Reliability, or (b) requires SFM Reliability to proceed with any proposed Transaction or relationship in connection with which Proprietary Information may be disclosed.
This Agreement is intended to encompass the subsidiaries and affiliates of the parties hereto. For the purposes of this Section19, the term “subsidiary” shall mean any entity that directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement. The rights and obligations of the Parties hereto shall inure to the benefit of their respective subsidiaries and affiliates and may be directly enforced by same.
THE PROPRIETARY INFORMATION IS PROVIDED “AS IS.” SFM RELIABILITY MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE ACCURACY OR COMPLETENESS OF THE PROPRIETARY INFORMATION.
No license to Customer of any trademark, patent, copyright, mask work protection right, or any other intellectual property right is either granted or implied by this Agreement or any disclosure hereunder, including, but not limited to, any license to make, use or sell any product embodying any Proprietary Information. No representation, warranty or assurance is made by SFM Reliability, with respect to the non-infringement of trademarks, patents, copyrights, mask protection rights or any other intellectual property rights or rights of third persons.
The parties’ obligations under this Section 19 will continue until the earlier of (i) three (3) years from the date such Proprietary Information is received, or (ii) such time as the Proprietary Information is publicly known and made generally available pursuant to any of subsections (a) through (d) of Section 19(a) through no action or inaction, if action is required, of Customer.
Customer acknowledges and agrees that due to the unique nature of SFM Reliability’s Proprietary Information, there may be no adequate remedy at law for Customer’s breach of its obligations under this Section 19, that any such breach may allow the Customer or third parties to unfairly compete with SFM Reliability resulting in irreparable harm to SFM Reliability, and therefore, that upon any such breach or any threat thereof, SFM Reliability shall be entitled to seek appropriate equitable relief in addition to whatever remedies it might have at law.
NO JOINT LIABILITY: Notwithstanding anything to the contrary, all representations, warranties, covenants, liabilities, debts, and obligations of each entity defined herein as SFM Reliability (each a “SFM Reliability Entity,” for the purposes of this Section 20) shall be several, and not joint; and under no circumstances shall any such SFM Reliability Entity be liable for any breach, default, liability, debt or other obligation of any other SFM Reliability Entity.
SURVIVAL. All provisions which by their nature should apply beyond the term of this agreement shall remain in force after termination.