Project Services Terms and Conditions
These Project Services Terms and Conditions (the “Terms and Conditions”) are referenced in any number of quotations for products and project services (each a “Quote”) provided by Scantron Corporation (“Scantron”) to the customer identified within the Quote (“Customer”) and are incorporated into the Quote by reference. By accepting services or signing the Quote referencing these Terms and Conditions, Customer acknowledges that the individual purchasing the products and services has authority to bind Customer to these Terms and Conditions and agrees to be bound by the terms of the Quote. Once accepted, the resulting contract based on the Quote is firm and non-cancelable, although it may be modified with the written consent of both parties through a Change Order (defined below). Terms of any other communication which are inconsistent with or in addition to the terms of the Quote are not binding on either party unless such terms are accepted in writing by both parties. Scantron reserves the right to change these terms and conditions at any time without prior notice. In the event that any changes are made, the revised terms and conditions shall be posted on this website immediately.
1. Scope. Scantron will provide to Customer the hardware and software products (“Products”) and project services (“Services”) (together, the “Products and Services”) defined in the Quote in exchange for the fees defined in the Quote.
2. Software License Grant. To the extent that software Products are acquired by Customer under this Quote (the “Software”), Scantron grants a non-exclusive, non-transferable license to the Software (the “License Grant”). Documentation is included in and with the license for the Software. Each License provides Customer with the right to use the Software object code (not source code) for Customer’s internal purposes only, to perform services in the normal course of Customer’s business, and consistent with the applicable Documentation. Any click-through license agreement that accompanies the Software, may define additional or alternative terms and conditions. If Customer does not agree to any click-through license agreement that is not made available for review before placing the order, Customer must notify Scantron within 15 days of delivery of Customer’s rejection of such terms and must promptly return the Product and accompanying items for a refund of the applicable fee. Scantron or its designated agents shall have the right to enter and inspect Customer’s records and/or its computer systems for the purpose of auditing Customer’s use of the Software. Access will be permitted with reasonable advance notice during business hours.
3. Subscription Service. Unless otherwise described in a Quote, the terms of this Section apply to Subscription Services. Scantron grants to Customer a limited, non-exclusive, non-transferable license to use and access the Subscription Service in accordance with the applicable schedule and any Documentation, which may limit the Subscription Service to a maximum number of users, volume of images, or other measure. All other restrictions on use applicable to Software referenced above apply to Customer’s access to Software through the Subscription Service. Subscription Period. The Subscription Period begins when the Software is shipped to Customer. Unless a longer initial term is identified in a Quote, the initial term shall be one year. The Subscription Period automatically renews for an additional year absent notice of non-renewal no less than 90 days prior to the end of the current term.
4. Change Orders. Certain unforeseen events related to the delivery of Products and Services or changes in project scope, such as the need for additional Product, Services, tools or supplies, may increase the fees defined in the Quote (the “Change Events”). In the absence of any Change Events, Scantron will invoice Customer the fees defined in the Quote plus applicable freight and taxes. If a Change Event occurs, Scantron will revise the Quote to include the modified fees and deliver the revision to Customer for execution (the “Change Order”). Any executed Change Order will become part of the Quote.
5. Product Availability and Pricing. Between the time that a Quote or Change Order is executed and the time that Product is ordered, Product pricing or availability may change. Scantron will advise Customer of such changes and provide a revised Quote or a Change Order as appropriate to reflect revised Product part numbers or Product pricing.
6. Business Hours. Unless otherwise specified in the Quote, Services will be delivered during Scantron’s Normal Business Hours, defined as Monday through Friday from 8am to 5pm local time, except during standard Scantron Holidays (New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day). Scantron may, at its discretion, choose to deliver Services outside of Normal Business Hours. However, Customer agrees that Services delivered beyond Normal Business Hours in response to Customer requests for such after-hours service, and not previously defined in the Quote, may result in a Change Order that includes labor at Scantron’s after-hour rates.
7. Customer Responsibilities.
7.1 Access to Facilities and Resources. Customer agrees to provide sufficient access to its facilities and resources as required to support Scantron’s delivery of Products and Services to Customer.
7.2 Adequate and Safe Work Environment. Customer agrees to provide adequate workspace and a safe working environment for Scantron employees or contractors to perform the Services defined in the Quote.
7.3 External Vendor Fees. Customer acknowledges that the deployment or operation of the Products may require Customer to acquire certain related products or services from providers other than Scantron which have not been included in the Quote. Such products or services may include hardware, software or services such as bandwidth, cabling and power.
7.4 Product Not Configured by Scantron. Customer acknowledges that Product ships from Scantron’s suppliers with factory defaults, operating system version and software patch levels, and that Customer is responsible for configuration of Products that are included in the Quote but without Scantron’s associated configuration labor.
8. Exemptions.
8.1 Inaccessible Cabling. Unless otherwise specified in the Quote, Scantron is not responsible for cabling which a) is located within walls, ceilings or floors; or b) is not easily visible and accessible within the customer’s facility without the use of special tools such as ladders or lifts.
8.2 Delays Beyond Scantron’s Control. Scantron will deliver Products and Services per a schedule that may be defined in a Quote or verbally conveyed, but is not responsible for delays beyond its control including Product shipment delays, customer facility readiness, force majeure events or other similar scenarios. Customer acknowledges that such delays may, in fact, increase the fees defined in the Quote and may result in a Change Order.
9. Fees and Billing.
9.1 Scantron shall invoice Customer for the fees identified or described in the Quote (the “Fees”) and Customer shall pay such Fees in accordance with the Quote. Unless otherwise stated in the Quote, Customer shall pay invoices issued under the Quote within thirty (30) days of the invoice date.
9.2. Down-payment. Based on the Customer’s tenure and the total Quote value, Scantron may request advance payment from Customer equal to 50% of the total Fees on the Quote (the “Down-payment”). For new Customers, Down-payment may be requested for Quotes with a total value equal to or greater than $1,000. For existing Customers, Down-payment may be requested for Quotes with a total value equal to or greater than $10,000. If such Down-payment is specified in the Quote, Scantron will order Product and begin delivering the Services upon receipt of the Down-payment from Customer.
9.3. Partial Billing. Scantron may, at its discretion, invoice Customer for Products and Services as they are delivered or upon delivery of all Products and Services on the Quote.
9.4. Incidental Expenses. A Quote may or may not include Fees for incidental expenses such as transportation, lodging and meals (the “Incidental Expenses”). Scantron may invoice Customer at Scantron’s actual cost for Incidental Expenses incurred in the delivery of Services beyond those Incidental Expenses which may have been included in the Quote.
9.5. Expedite Requests. Customer acknowledges that requests to expedite Product or Services may increase Scantron’s costs, increase the Fees that were included in the Quote or introduce additional fees. Such expedite requests may produce a Change Order.
9.6. Taxes. Customer will pay or reimburse Scantron for all duties, taxes (other than taxes on Scantron’s income), fees or other similar amounts assessed or imposed by governmental authorities.
9.7. Freight. Unless otherwise specified in a Quote, Product freight and handling charges are not included in a Quote and will be billed to Customer as a separate and additional fee. All Products are shipped FOB Origin.
9.8. Returns. Scantron is not obliged to accept Product returns from Customer. However, Scantron may agree to accept a return for Products that were not needed, are un-opened and are in pristine condition in return for a re-stocking fee based on the greater of a) 15% of the Product price to Customer or b) the re-stocking fee charged by Scantron’s supplier.
10. Term and Termination. The Quote remains in effect until performance of the Services is complete. Either party may terminate the Quote immediately if a party fails to cure a material breach within thirty (30) days following written notice explaining the breach. A material breach by Customer includes, without limitation, failure to pay fees when due under this Quote. Termination does not relieve Customer of payment obligations for Services performed prior to the effective date of the termination.
11. Proprietary Rights. The Products and Services are protected by copyright, trade secret and other proprietary rights of Scantron and its suppliers. Software are licensed, not sold, to Customer. Scantron reserves all rights in Products and Services not expressly granted to Customer.
12. Confidentiality. Both parties may acquire certain information that is confidential, proprietary or trade secret information of the other party or a third party (“Confidential Information”) in the performance of the Quote. The party receiving Confidential Information will: use such information solely for performance under the Quote; not disclose such information to any third party (excluding agents and, in the case of Scantron, its affiliated companies); and otherwise protect such information from any unauthorized use or disclosure. The receiving party shall bind its employees, agents and affiliates having access to Confidential Information to confidentiality obligations consistent with this provision. Neither party will be obligated to keep confidential any information that is: publicly available through no fault of such party; received by such party from a third party not under a confidentiality obligation regarding the information; independently developed by such party without referring to the Confidential Information; or required by applicable law to be disclosed by such party.
13. Warranty. Scantron warrants that the Services described in the Quote will be provided in a professional and workmanlike manner. THE WARRANTIES AND REMEDIES SET FORTH IN THIS SECTION ARE EXCLUSIVE AND ARE IN SUBSTITUTION FOR ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF SCANTRON, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. THIRD PARTY PRODUCTS. Some Products and Services may include or operate in conjunction with computer programs, data or hardware supplied by a third party. Other than third party programs or data that are embedded in, and delivered as, an inseparable part of the Product or Services, all third-party computer programs, data and hardware (“Independent Third-Party Products”) are supplied “AS IS” by Scantron. If Independent Third-Party Products are supplied with separate warranty and support terms that can be passed through to Customer, the third party that supplies such programs and data is responsible for fulfilling such warranty and support terms, and Scantron makes no warranty and assumes no obligation with respect to such items.
14. Limitation of Liability. IN NO EVENT SHALL SCANTRON OR SCANTRON’S REPRESENTATIVES BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR REVENUES, LOST DATA, COSTS OF COVER, OR DAMAGES FOR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS QUOTE OR SCANTRON’S PERFORMANCE OR NON PERFORMANCE OF SCANTRON’S OBLIGATIONS AND RESPONSIBILITIES UNDER THIS QUOTE, OR THE USE OF, INABILITY TO USE, OR RESULTS OF ANY USE OF ANY PRODUCTS OR SERVICES, REGARDLESS OF (a) WHETHER SUCH DAMAGES WERE FORESEEABLE, (b) WHETHER SCANTRON, SCANTRON’S REPRESENTATIVES, OR SCANTRON’S SUBCONTRACTORS, LICENSORS, OR DESIGNEES WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (c) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION 14 SHALL APPLY EVEN IF CUSTOMER’S REMEDIES UNDER THIS QUOTE OR ANY SOW FAIL OF THEIR ESSENTIAL PURPOSE. NO ACTION RELATED TO THIS QUOTE OR ANY SOW MAY BE BROUGHT MORE THAN TWO (2) YEARS AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT SHALL SCANTRON’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS QUOTE AND ANY SOW HEREUNDER EXCEED THE FEES PAID TO OR PAYABLE TO SCANTRON BY CUSTOMER UNDER THE APPLICABLE SOW FOR THE SERVICES PROVIDED DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM.
15. MISCELLANEOUS.
15.1 Independent Contractors. The relationship of the Parties shall, at all times, be that of independent contractors. Neither Party, nor any of its employees or agents, shall have the authority to act for or on behalf of the other Party or to bind the other Party without its express written approval.
15.2 Third-Party Offerings. In the event the Products or Services provided by Scantron include or incorporate third party software, products, or services (collectively, “Third-Party Offerings”), Customer acknowledges that such Third-Party Offerings may be subject to supplemental terms or agreements between such third party and Customer. Scantron offers such Third-Party Offerings within or as a part of the Products and Services subject to Customer’s acquiescence and compliance to such third party’s supplemental terms or agreements.
15.3 Notices. All notices, requests, or demands made pursuant to this Quote shall be delivered in person, be sent by certified mail, return receipt requested, or be sent by overnight courier service to the address of the Parties set forth in this Quote or to such other address as may be stipulated in writing by the Parties.
15.4 Entire Agreement. This Quote contains the entire understanding of the Parties hereto with respect to the subject matter hereof and supersede all prior and contemporaneous verbal or written agreements related to such subject matter.
15.5 Assignment. Customer may not assign, transfer, or delegate this Quote, or any of its rights or obligations hereunder without the prior written consent of Scantron. Scantron may assign this Quote or any of its rights or delegate any of its obligations to any affiliate or to any person, entity, or organization acquiring all or substantially all of Scantron’s assets without Customer’s consent. This Quote shall be binding upon and inure to the benefit of each Party’s successors and assigns.
15.6 Waiver. No waiver by either Party of any provision of this Quote shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth herein, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Quote shall operate or be construed as waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
15.7 Severability. If any term or provision of this Quote is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Quote or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination by a court of competent jurisdiction, the Parties shall modify this Quote to effect the original intent of the Parties as closely as possible.
15.8 Governing Law. This Quote shall be construed in accordance with the laws of the State of Nebraska, without giving effect to principles of conflicts of law thereof. Each Party irrevocably and unconditionally consents that venue for any action, litigation, or proceeding of any kind shall be in the State of Nebraska. Any action, litigation, or proceeding of any kind whatsoever arising from or related to this Quote in the District Court of Douglas County, Nebraska, or the United States District Court for the State of Nebraska.
15.9 Survival. Sections 11 through 14, and 15.8 together with all other provisions of this Quote that may reasonably be interpreted or construed as surviving the termination of this Quote shall survive.